VAUGHN v. TALX CORPORATION

Filing 33

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. PLAINTIFF'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED; THE MOTION TO DISMISS [#11] IS DENIED; AND PLAINTIFF SHALL HAVE UNTIL 8/24/15 TO DULY SERVE THE SUMMONS AND COMPLAINT UPON DEFENDANT. IT IS FURTHER ORDERED THAT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT [#7] IS DENIED, AND PLAINTIFF'S "MOTION AFFIDAVIT FOR JUDGMENT BY DEFAULT [#3] AND "MOTION CONTENT AND FORM OF PROOF OF SERVICE" [#8] ARE DENIED, AS THEY ARE NOT PROPERLY MOTIONS, BUT RATHER DOCUMENTS SUPPORTING THE MOTION FOR DEFAULT JUDGMENT. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/23/15. 6/23/15 ENTERED & E-MAILED. COPY MAILED TO VAUGHN.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DOUG VAUGHN

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:

Plaintiff,

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:
:
:
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v.
TALX CORPORATION
Defendant.

CIVIL ACTION
NO. 14-7110

:
O R D E R

AND NOW, this 23rd day of June, 2015, upon review of
Defendant’s Motion to Dismiss (ECF No. 11), as well as the Report
and Recommendation of United States Magistrate Judge Thomas J.
Rueter (ECF No. 23) and Plaintiff’s Objections thereto (ECF No.
30), the following is hereby ORDERED:
(1)

The Report and Recommendation is APPROVED and
ADOPTED;

(2)

Plaintiff’s Objections to the Report and
Recommendation are OVERRULED;

(3)

The Motion to Dismiss (ECF No. 11) is DENIED; and

1

(4)

Plaintiff shall have until August 24, 2015 to
duly serve the Summons and Complaint upon
Defendant.1

1

Defendant moves to dismiss the Complaint pursuant to
Federal Rules of Civil Procedure 12(b)(5), 4(h), and 4(m),
arguing that TALX has not been properly served. Defendant
provides a brief summary of Plaintiff’s efforts to effect service
in this case:
Plaintiff Doug Vaughn (“Plaintiff”) filed a
Complaint against TALX Corporation on November 20, 2014
(the “Complaint”). Sometime thereafter, it appears that
Plaintiff mailed a copy of the Complaint to 11432
Lackland, St. Louis, Missouri 65146, addressed to TALX
employee Randal Crocker. TALX received the Complaint on
or about December 5, 2014. It was forwarded to Mr.
Crocker upon receipt by TALX’s mailroom vendor, Canon
Managed Document Services. No TALX employee signed a
certified mail receipt for the December 5, 2014
mailing, and no summons was included with the Complaint
in the December 5, 2014 mailing.
Plaintiff filed a “Motion for Default” against
TALX on January 28, 2015, along with a “Certificate of
Service.” The Certificate of Service indicates that
Plaintiff mailed the Motion for Default to TALX at
11432 Lackland, St. Louis, Missouri 63146 on February
2, 2015. By order dated February 5, 2015, the Court
denied Plaintiff’s Motion for Default, as no proof of
service had been filed with the Court.
On February 2, 2015, Plaintiff mailed a copy of
the Motion for Default to TALX’s “Human Resources
Department,” and then field a “Statement of Service by
Mail” on February 10, 2015. This filing appears to
include a photocopy of a certified mail receipt, but no
signed return receipt. Plaintiff also appears to have
printed the name “Daniel E. Prouasnik” on the
photocopy,
in
seeming
reference
to
Mr.
Daniel
Provasnik, a Canon employee who works in TALX’s
mailroom. In any event, no TALX employee signed for the
2

February 2, 2015 mailing, which included only the
Motion for Default, and did not include a copy of the
summons or Complaint.
On March 19, 2015, Plaintiff filed a “Notice,”
“Motion for Judgment Upon Default or Admission, Rule
1037, Assessment of Damages,” and “Motion for Content
and Form of Proof of Service,” which were purportedly
mailed to TALX on March 19, 2015.
To date, no TALX employee, officer, partner,
trustee, manager, or authorized agent has been
personally served with a
copy of process in this
action, and no authorized TALX agent has signed a
certified mail receipt.
Def.’s Br. Supp. Mot. Dismiss 2-3, ECF No. 11-1.
A federal court may dismiss a complaint for
“insufficient service of process.” Fed. R. Civ. P. 12(b)(5).
“[T]he party asserting the validity of service bears the burden
of proof on that issue.” Grand Entm’t Grp., Ltd. v. Star Media
Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993).
Federal Rule of Civil Procedure 4(h)(1)(B) provides
that a corporation must be served “by delivering a copy of the
summons and of the complaint to an officer, a managing or general
agent, or any other agent authorized by appointment or by law to
receive service of process and – if the agent is one authorized
by statute and the statute so requires – by also mailing a copy
of each to the defendant.” Here, Plaintiff sent a copy of the
Complaint to Randal Crocker, an employee of TALX. Plaintiff has
failed to prove or even claim that Crocker is an agent of
Defendant, authorized to receive service of process. Moreover,
Plaintiff failed to send the summons along with the Complaint.
Accordingly, this attempted service was insufficient under Rule
4(h)(1)(B).
In the alternative, a corporation may be served “in the
manner prescribed by Rule 4(e)(1) for serving an individual.”
Fed. R. Civ. P. 4(h)(1)(A). Rule 4(e)(1) provides that an
individual may be served by “following state law for serving a
summons in an action brought in courts of general jurisdiction in
the state where the district court is located or where service is
3

It is further ORDERED that Plaintiff’s Motion for
Default Judgment (ECF No. 7) is DENIED,2 and Plaintiff’s “Motion
Affidavit for Judgment by Default” (ECF No. 3) and “Motion
made.” As Plaintiff brought this case in the Eastern District of
Pennsylvania, service under Pennsylvania state law would
therefore be permitted. Here, Plaintiff has also failed.
Pennsylvania law permits service upon a corporation by handing a
copy of process to “(1) an executive officer, partner or trustee
of the corporation or similar entity, or (2) the manager, clerk
or other person for the time being in charge of any regular place
of business or activity of the corporation or similar entity, or
(3) an agent authorized by the corporation or similar entity in
writing to receive service of process for it.” Pa. R. Civ. P.
424. Plaintiff has not handed a copy of the Complaint and summons
to any such individual. Pennsylvania law also allows service
outside the Commonwealth, Pa. R. Civ. P. 404, “by any form of
mail requiring a receipt signed by the defendant or his
authorized agent,” Pa. R. Civ. P. 403. Neither Defendant nor its
authorized agent has signed any receipt for Plaintiff’s mailing.1
Accordingly, Plaintiff has failed to complete service
under both federal and Pennsylvania law. Because more than 120
days have passed since Plaintiff filed the Complaint, the Court
“must dismiss the action without prejudice against that defendant
or order that service be made within a specified time.” Fed. R.
Civ. P. 4(m). The Third Circuit has held that “dismissal of a
complaint is inappropriate when there exists a reasonable
prospect that service may yet be obtained.” Umbenhauer v. Woog,
969 F.2d 25, 30 (3d Cir. 1992). In this case, there is such a
reasonable prospect – Plaintiff has failed to comply with the
technical requirements of the service rules, but there is no
reason to believe that some insurmountable obstacle will prevent
him from complying in the future.
Therefore, the Court will deny Defendant’s Motion to
Dismiss and allow Plaintiff to properly serve Defendant within 60
days.
2

As discussed above, Plaintiff has not yet completed
service in this case. Accordingly, default cannot be entered and
the motion must be denied.
4

Content and Form of Proof of Service” (ECF No. 8) are DENIED, as
they are not properly motions, but rather documents supporting
the Motion for Default Judgment.

AND IT IS SO ORDERED.

/s/ Eduardo C. Robreno
EDUARDO C. ROBRENO,
J.

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