MCCAFFREY v. WINDSOR AT WINDERMERE LIMITED PARTNERSHIP et al
MEMORANDUM AND OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 11/15/17. 11/15/17 ENTERED & E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WINDSOR AT WINDERMERE
LIMITED PARTNERSHIP, et al.
November 15, 2017
Defendant Windsor Property Management Company (WPMC) has filed a renewed
motion to dismiss plaintiff Stepfanie McCaffrey’s complaint based upon insufficient service of
process. Dkt. No. 36. 1 In response, plaintiff moves for additional time to serve WPMC. Dkt.
No. 40. For the following reasons, the Court will deny WPMC’s renewed motion to dismiss
without prejudice and grant plaintiff an additional 14 days in which to properly to serve WPMC.
Plaintiff alleges that WPMC “was the property management company that was
responsible for the operation, control, management, supervision and/or maintenance of the
Windsor at Windermere Place [apartment] community, and all the buildings and residential units
contained therein.” Dkt. No. 13 at ECF p. 8, ¶ 38; see also id. at ECF p. 5, ¶ 25 (“WPMC acted
as the property management company and was responsible for the management, oversight and
supervision of all maintenance and repairs for the apartment complex.”). She claims that while
she rented Unit #302 in the community, she “notified the property management company WPMC
multiple times of a defective issue with her fireplace and/or chimney.” Id. at ECF p. 3, ¶ 8.
This motion was originally filed at docket number 15. Because the renewed
motion to dismiss makes no new arguments, citations to the motion herein are made to docket
Then, on or about December 21, 2014, other tenants started their fireplace which caused smoke
and other hazardous materials to enter [her] apartment.” Id. at ECF p. 3, ¶ 9. Plaintiff claims
that “[a]s a direct result of the substances that entered into [her] apartment, she suffered serious
and permanent bodily injuries . . . .” Id. at ECF p. 3, ¶ 10.
Plaintiff commenced this personal injury action arising out of the alleged December 21,
2014 incident by filing a complaint against multiple defendants in the Chester County Court of
Common Pleas on October 6, 2016. See Dkt. No. 15-2 at ECF p. 2 (Chester County Court of
Common Pleas docket). She then filed a praecipe to reinstate her complaint on November 4,
2016. See id. The docket for this matter in the Court of Common Pleas for Chester County does
not reflect any attempt at service on WPMC between October 6, 2016 and November 4, 2016.
See id. Then, on November 23, 2016, an “Affidavit of Non Service” was filed, showing that the
Chester County Sheriff had attempted service of the complaint on WPMC on November 15,
2016, but that WPMC was not present at the address where service was attempted. See id. (“Per
Theresa Dinubile-Ching Pic of Current Company ‘Panco Management’, current owner as of
9/28/19. Def[.] no longer at location.”). 2 On November 28, 2016, plaintiff filed a second
praecipe to reinstate her complaint and then, on December 15, 2016, she filed an amended
complaint. See id.
Windsor at Windermere Limited Partnership (WWLP), Windsor at Windermere Investors
Corporation (WWIC) and Windsor Communities, defendants other than WPMC, 3 then removed
WPMC thus incorrectly asserts in its reply brief that “Plaintiff never attempted to
serve WPMC until after this Court made note in its May 8, 2017 Court Order . . . of the fact that
WPMC had not been served as of that date.” Dkt. No. 20 at ECF p. 6 (emphasis added).
The notice of removal was not filed on behalf of WPMC even though the ECF
docket entry for the notice of removal, Dkt. No. 1, states that it is a “NOTICE OF REMOVAL
by WINDSOR AT WINDERMERE INVESTORS CORPORATION, WINDSOR AT
WINDERMERE LIMITED PARTNERSHIP, WINDSOR COMMUNITIES, WINDSOR
the action to this Court on February 1, 2017. See Dkt. No. 13. Plaintiff does not dispute
WPMC’s assertion that “[t]here were no further filings by Plaintiff in State Court before the
Notice of Removal was filed by other defendants . . . .” Dkt. No. 15 at ECF p. 4, ¶ 13; see Dkt.
No. 16 at ECF p. 3, ¶ 13 (“Admitted.”). Plaintiff did not oppose removal.
Rather, after this matter was removed, counsel for plaintiff contacted counsel for the
removing defendants and asked whether there were any issues related to service of the
complaint. Dkt. No. 18 at ECF p. 13 (March 1, 2017 email from Sutton to McMeekin).
Plaintiff’s counsel explained, “[n]ow that the matter is in Federal court, I just want to confirm
service on all defendants and also confirm if you are representing all the defendants.” Id.
Counsel for defendants responded in relevant part as follows: “We currently represent the
defendants served but since I am out of the office I can’t say which ones they are off the top of
my head. I presume that we would represent any defendant served if you are saying that there
has been subsequent service.” Id. (March 1, 2017 email from McMeekin to Sutton) (emphasis
added). Counsel for plaintiff responded with a further email explaining that he would not be
filing a motion for remand and said “[w]hen you get back I just want to confirm service and add
the tenants as defendants.” Id. at ECF p. 15 (second March 1, 2017 email from Sutton to
McMeekin). Apparently counsel had no further communications regarding the status of service
until defendants WWLP, WWIC and Windsor Communities filed a motion to dismiss the
amended complaint on March 15, 2017. 4 Dkt. No. 5. In that motion, the moving defendants
noted that WPMC had not been properly served. Id. at ECF p. 3, n.1 (“Although not served at
the time of this filing, upon information and belief, Defendant Windsor Property Management
Company is a Delaware Corporation and maintains its principal place of business at 125 High
PROPERTY MANAGEMENT COMPANY.” See Dkt. No. 1 at ECF p. 1, 4.
WPMC did not join in this motion.
Street, 27111 Floor, Boston, Massachusetts 02110.”). 5
Plaintiff responded to the March 15, 2017 motion to dismiss on April 3, 2017. Dkt. No.
6. Her response did not address the moving defendants’ assertion that WPMC had not been
served. On April 10, 2017, the moving defendants filed a reply in which they reiterated that
“[a]lthough Windsor Property Management Company is a named Defendant, it has not been
served and is not one of the Moving Defendants herein.” Dkt. No. 7 at ECF p. 4.
Plaintiff contends that, thereafter, she “served [WPMC] with her complaint on April 17,
2017.” 6 Dkt. No. 18 at ECF p. 5. In support of her claim that WPMC was served “[i]n
accordance with Federal Rule of Civil Procedure 4(m),” id., she cites a letter enclosing her
amended complaint and “the Notice of Removal documentation which removed the . . . matter
from its original filing in state court to the United States District Court [f]or [t]he Eastern District
of Pennsylvania” that her counsel sent on April 12, 2017 to “Windsor Property Management
Company, 125 High Street, Boston, MA 02110” via certified mail, return receipt requested. Dkt.
No. 18 at ECF p. 16. The delivery receipt was signed by someone at that address on April 17,
2017, although the signature is illegible and the printed name line was left blank. Id. at ECF p.
On May 8, 2017, this Court granted the motion to dismiss by WWLP, WWIC and
Windsor Communities. Dkt. Nos. 9 and 10. Plaintiff was granted leave to file a second
In its motion to dismiss, WPMC asserts that it “is a foreign defendant
incorporated in the state of Delaware and with its principal place of business in Boston,
MA . . . .” Dkt. No. 15 at ECF p. 12. It contends that “its registered agent was and still is CT
Corporation . . . and that it could have been timely served via CT Corporation in Harrisburg,
Dauphin County, Pennsylvania.” Id.
Although plaintiff’s original opposition brief states that she served WPMC with
her “complaint” on April 17, 2017, Dkt. No. 18 at ECF p. 5, the exhibit referenced in her brief,
id. at ECF p. 16-21, states that she served WPMC with her amended complaint on April 17,
amended complaint. See Dkt. No. 10. Because there was no proof of service on WPMC on the
docket at the time, the Court’s Order explained that it “sh[ould] serve as notice to plaintiff that if
she intends to file a second amended complaint naming Windsor Property Management
Company as a defendant, she shall file proof of service upon it with the Court on or before May
22, 2017, or her claims against it will be dismissed without prejudice.” Dkt. No. 10.
Also on May 8, 2017, the same defense counsel who had filed the motion to dismiss on
behalf of WWLP, WWIC and Windsor Communities filed a motion to dismiss on behalf of
WPMC raising the issue of insufficient service of process on WPMC. Dkt. No. 8. The Court
dismissed the motion as moot on May 9, 2017, Dkt. No. 11, because plaintiff’s amended
complaint had been dismissed pursuant to the Court’s Order of May 8, 2017. Dkt. No. 10.
WPMC was given leave to file a renewed motion in the event that plaintiff named it as a
defendant in a further amended complaint. Dkt. No. 11.
On May 17, 2017, plaintiff filed a document with the Court titled “proof of service,”
evidencing her attempt to serve WPMC with the amended complaint in April 2017. Dkt. No. 12.
The document, signed by counsel for plaintiff under penalty of perjury, asserts that the state
court Amended Complaint and the “Notice of Removal documentation” were served on WPMC
by certified mail, restricted delivery on April 17, 2017. Id. The document attaches the signed
return receipt card (printed name line left blank) for mail delivered to Windsor Property
Management Company at 125 High Street, Boston, MA 02110. Id. at ECF p. 4.
On May 22, 2017, plaintiff filed a second amended complaint with this Court. Dkt. No.
13. A copy of the second amended complaint was then sent to counsel for WPMC by “regular
U.S. mail.” Dkt. No. 13-1 at ECF p. 11. WPMC filed a motion to dismiss the second amended
complaint on June 5, 2017. Dkt. No. 15.
On September 27, 2017, finding that it was unable to determine whether complete
diversity existed between the parties, the Court dismissed WPMC’s motion to dismiss along with
other pending motions “without prejudice to renewal upon the existing papers” in the event that
defendants were able to demonstrate a basis for the Court’s jurisdiction over plaintiff’s claims.
Dkt. No. 32.
WWIC and WWLP filed an amended notice of removal on October 5, 2017 in which they
allege the citizenship of the partners in WWLP, none of which are citizens of Pennsylvania, thus
satisfying the requirements for the exercise of diversity jurisdiction under 20 U.S.C. § 1332.
Dkt. No. 34 at ECF p. 2, ¶ 3. On the same day, WPMC filed a renewed motion to dismiss. Dkt.
No. 36. Plaintiff then filed a renewed answer to the motion to dismiss in which she notes that
“[a] new supporting brief is being filed.” Dkt. No. 41 at ECF p. 1. WPMC has filed a motion to
renew its originally filed reply. Dkt. No. 44.
Motion to Strike
To begin, WPMC has filed a motion to strike plaintiff’s new opposition brief, Dkt. No.
43, to which plaintiff has filed a response. Dkt. No. 49. WPMC argues that “[t]he Court’s
September 27, 2017 Order provides for renewal of filed motions, it does not state that new
motions may be filed” and contends that plaintiff should not be permitted to assert “new factual
and legal arguments that were not asserted in her original response.” Dkt. No. 43 at ECF p 4-5
(emphasis in original). Plaintiff responds that the Court’s “September 27, 2017 Order did not in
any way limit what arguments could be made in response to any Motions that were to be
renewed” and argues that she “is free to file any oppositions she deems appropriate.” Dkt. No.
49 at ECF p. 3, 4.
The Court does not construe the language of the September 27, 2017 Order, which
permitted renewal of WPMC’s motion to dismiss “on the existing papers,” Dkt. No. 32
(emphasis added), as granting plaintiff an opportunity to make new arguments in response to
WPMC’s renewed motion to dismiss. WPMC’s renewed motion merely re-files the existing
papers (consistent with the Court’s Order) and the Court thus sees no reason to give plaintiff an
opportunity to make arguments that she declined to make when she first filed her response to
WPMC’s motion. Accordingly, the Court will grant WPMC’s motion to strike plaintiff’s new
reply brief. Instead, in deciding WPMC’s motion to dismiss, the Court will consider plaintiff’s
previously filed opposition and brief in opposition, 7 Dkt. Nos. 16 and 18, and WPMC’s
previously filed reply, Dkt. No. 20. 8
WPMC’s Motion to Dismiss and Plaintiff’s Motion to Extend the Time for Service
WPMC moves to dismiss plaintiff’s claims pursuant to Rule 12(b)(5) of the Federal
Rules of Civil Procedure, which provides for a motion to dismiss for “insufficient service of
process.” Fed. R. Civ. P. 12(b)(5). WPMC also moves to dismiss plaintiff’s claims against it
In its motion to strike plaintiff’s brief, WPMC argues that “Plaintiff’s original
Brief in Opposition was filed late and was opposed by WPMC, inter alia, on that basis.” Dkt.
No. 43 at ECF p. 4; see also Dkt No. 20 at ECF p. 2-3 (arguing that WPMC’s motion to dismiss
should be “granted with prejudice as uncontested” because plaintiff’s brief in opposition to the
motion was untimely). Plaintiff filed her original response within 14 days of the June 5, 2017
filing of WPMC’s motion, as is required under Rule 7.1 of the Local Rules of Civil Procedure.
See Dkt. No. 16 (filed June 19, 2017). However, her original opposition brief was filed one day
late. See Dkt. No. 18 (filed June 20, 2017).
Although the Court will not here consider plaintiff’s “new brief,” it declines to grant
WPMC’s motion as uncontested and will consider her previously filed opposition brief. In
deciding to consider plaintiff’s previously filed brief, the Court notes the Supreme Court’s
instruction that “the requirements of the rules of procedure should be liberally construed and that
‘mere technicalities’ should not stand in the way of consideration of a case on its merits.” Torres
v. Oakland Scavenger Co., 487 U.S. 312, 316 (1988).
The Court will grant WPMC’s motion to renew its reply, Dkt. No. 44. Because
the renewed reply makes no new arguments, citations to the motion herein are made to docket
number 20, where the reply was originally filed.
pursuant to Rule 12(b)(4), which permits a motion to dismiss for “insufficiency of process.”
Fed. R. Civ. P. 12(b)(4). A Rule 12(b)(4) motion challenges the adequacy of the contents of the
documents served. See Target Glob. Logistics Servs., Co. v. KVG, LLC, No. 15-04960, 2015
WL 8014752, at *5 (E.D. Pa. Dec. 3, 2015) (“This ‘fairly rare’ defense “concerns the form of the
process rather than the manner or method of its service.”), citing 5B Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1353 (3d ed. 2004).
The fundamental purpose of service is to ensure that a defendant receives notice of the
suit and has a fair opportunity to present its objections . . . .” Bank of Am., Nat’l Ass’n v.
Martin, No. 12-544, 2013 WL 5128840, at *5 (M.D. Pa. Sep. 12, 2013), citing Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). “The rules governing service of process
are not designed to create an obstacle course for plaintiffs to navigate, or a cat-and-mouse game
for defendants who are otherwise subject to the court’s jurisdiction.” TRW, Inc. v. Derbyshire,
157 F.R.D. 59, 60 (D. Col. 1994). There is no question that WPMC has received notice of this
lawsuit. The question is whether plaintiff should be permitted to proceed with her claims against
WPMC given what the Court knows about her efforts to serve it.
“[N]otice underpins Federal Rule of Civil Procedure 4 concerning service,” but the Court
of Appeals has held that “notice cannot by itself validate an otherwise defective service.” Grand
Entm’t Grp., LTD. v. Star Media Sales, Inc., 988 F.2d 476, 492 (3d Cir. 1993). A court
generally does not have jurisdiction over a defendant if there has been insufficient process or
service of process. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350
(1999) (“In the absence of service of process (or waiver of service by the defendant), a court
ordinarily may not exercise power over a party the complaint names as defendant.”). 9 As the
Plaintiff has not shown that she asked WPMC to waive service of process.
Court of Appeals has explained,
[i]t is an elementary requirement that personal jurisdiction must be
established in every case before a court has power to render any
judgment. . . . A court obtains personal jurisdiction over the
parties when the complaint and summons are properly served upon
the defendant. Effective service of process is therefore a
prerequisite to proceeding further in a case.
Lampe v. Xouth, Inc., 952 F.2d 697, 700–01 (3d Cir. 1991).
WPMC argues that the Court lacks personal jurisdiction over plaintiff’s claims against it
because it has not been properly served with adequate process. For this reason, WPMC also
asserts Rule 12(b)(2) of the Federal Rules of Civil Procedure as a basis for its motion to
dismiss.10 As is set forth below, the Court agrees with WPMC that, to date, plaintiff’s efforts at
service on WPMC have not been sufficient to meet the formal requirements for service under
Rule 4 of the Federal Rules of Civil Procedure. But this does not end the Court’s analysis of
WPMC’s motion to dismiss.
The Court’s analysis begins with plaintiff’s efforts to serve WPMC prior to removal –
and thus begins with the Pennsylvania Rules of Civil Procedure. Citing Rule 401(a)(b)(1) of the
Pennsylvania Rules, WPMC argues that “[p]laintiff’s Amended Complaint was “dead” as of
January 16, 2017.” Dkt. No. 15 at ECF p. 8, ¶ 37. Rule 401(a) provides that “[o]riginal process
shall be served within the Commonwealth within thirty days after the issuance of the writ or the
filing of the complaint.” Pa. R. Civ. P. 401(a) (emphasis added).
There is no dispute that plaintiff did not serve WPMC within the Commonwealth within
When a defendant files a motion to dismiss pursuant to Rule 12(b)(2), plaintiff
bears the burden of showing that the Court has personal jurisdiction over the defendant. See
Marten v. Godwin, 499 F.3d 290, 295-96 (3d Cir. 2007). Absent an evidentiary hearing, plaintiff
need only establish “a prima facie case of personal jurisdiction” and is entitled to have all factual
disputes drawn in her favor and her allegations taken as true. Miller Yacht Sales, Inc. v. Smith,
384 F.3d 93, 97 (3d Cir. 2004).
thirty days of first filing her complaint. Instead, consistent with Rule 401(b)(1) of the
Pennsylvania Rules, on November 4, 2016, plaintiff filed a praecipe to reinstate her complaint.
See Pa. R. Civ. P. 401(b)(1) (providing that if a plaintiff fails to make service of a complaint
within the Commonwealth within thirty days, “the prothonotary upon praecipe and upon
presentation of the original process, shall continue its validity by . . . reinstating the complaint”).
Less than thirty days later, plaintiff made an unsuccessful attempt to serve WPMC within the
Commonwealth at 1500 Windermere Road in West Chester, Pennsylvania. Dkt. No. 15-2 at
ECF p. 2. Plaintiff then filed a second praecipe to reinstate her complaint on November 28, 2016
and an amended complaint on December 15, 2017. Id. WPMC was not served within the
Commonwealth within thirty days of either of these events. Also, plaintiff never asked the Court
of Common Pleas to reinstate her amended complaint. WPMC thus argues that “Plaintiff’s
Amended Complaint was dead as of January 16, 2017.” Dkt. No. 15 at ECF p. 8.
WPMC’s motion, however, does not explicitly address whether Rule 404 of the
Pennsylvania Rules of Civil Procedure might also apply to plaintiff’s claims against it. Rule 404
provides for service of original process “outside the Commonwealth within ninety days of the
issuance of the writ or the filing of the complaint or the reissuance or the reinstatement thereof”
Pa. R. Civ. P. No. 404 (emphasis added). WPMC appears to suggest that the ninety day time
limit for service in Rule 404 should not apply to plaintiff’s claims against it, noting in a footnote
[w]hile WPMC is a foreign defendant incorporated in the state of
Delaware and with its principal place of business in Boston, MA,
its registered agent was and still is CT Corporation . . . . and
WPMC . . . could have been timely served via CT Corporation in
Harrisburg, Dauphin County, Pennsylvania.
Dkt. No. 15 at ECF p. 8 n.3 (emphasis added). But WPMC cites no authority to support the
proposition that plaintiff was required to serve WPMC through its registered agent within the
Commonwealth (and thus within thirty days of reinstatement). Rather, Rule 424 of the
Pennsylvania Rules of Civil Procedure provides that
[s]ervice of original process upon a corporation or similar entity
shall be made by handing a copy to any of the following persons
provided the person served is not a plaintiff in the action: (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
Pa. R. Civ. P. 424 (emphasis added). The language of Rule 424 does not mandate service on an
authorized agent located within the Commonwealth. Instead, under Rule 424, service on an
authorized agent is just one of three options for proper service of process upon a corporation.
Rule 424 would also allow plaintiff to serve WPMC with original process “by handing a copy
to . . . an executive officer, partner or trustee of the corporation . . . or . . . the manager, clerk or
other person for the time being in charge of any regular place of business or activity of the
corporation.” Id. Either of these methods of service might have permitted plaintiff to serve
WPMC – which is, by its own admission, a “foreign defendant” – outside of the Commonwealth
(such as at the corporation’s principal place of business in Boston, Massachusetts), rendering
Rule 404’s ninety day time limit for service the appropriate benchmark for determining whether
plaintiff’s claims against WPMC remained valid when the other defendants removed this action
on February 1, 2017. Ninety days from December 15, 2016 was March 15, 2017, well after the
date of removal. Under the circumstances, the Court declines to find that plaintiff’s amended
complaint was “dead” before the matter was removed to federal court.
Next, the Court must consider whether plaintiff ever perfected service on WPMC
following removal. 28 U.S.C. § 1448 provides that,
[i]n all cases removed from any State court to any district court of
the United States in which one or more of the defendants has not
been served with process or in which the service has not been
perfected prior to removal, or in which process served proves to be
defective, such process or service may be completed or new
process issued in the same manner as in cases originally filed in
Rule 4(h)(1)(A) of the Federal Rules of Civil Procedure states that a party may serve a
corporation “in the manner prescribed by Rule 4(e)(1),” which includes “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 . . . .” Fed. R. Civ. P. 4(h)(1)(A) and 4(e)(1). Rule 4(h)(1)(B) also
provides for service on a corporation “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 so authorized by statute and the statute
so requires – by also mailing a copy of each to the defendant.” Fed. R. Civ. P. 4(h)(1)(B).
WPMC argues that, after removal, plaintiff failed to perfect service on it because she
“failed to serve WPMC with a proper summons issued by this Court pursuant to Federal Rule of
Civil Procedure 4 . . . .” Dkt. No. 15-1 at ECF p. 12. Plaintiff contends that she perfected
service on WPMC after removal by serving “the Defendant via certified mail . . . within 90 days
of this matter being removed to Federal Court.” Dkt. No. 18 at ECF p. 9.
Plaintiff argues that “[u]nder Pennsylvania Rule 403, service by mail is permissible,
provided the form of mail used must require a receipt signed by the defendant or his authorized
agent.” Id. at ECP p. 9. She contends that she complied with Pennsylvania Rule 403, citing the
return receipt for her April 12, 2017 letter to WPMC enclosing the Amended Complaint and
Notice of Removal documentation, that was “signed by an individual at WPMC’s primary
business office address in Boston, MA” on April 17, 2017 Id., citing id. at ECF p. 16-21
(plaintiff’s “Exhibit C”). Plaintiff contends that “an agent of WPMC signed for the mailing,”
and argues that WPMC “has not attempted to claim that the individual who signed for the mail
was either somehow not an agent or employee of [WPMC] . . . .” Dkt. No. 18 at ECF p. 9.
WPMC responds that “[p]laintiff fails to state or show by affidavit or otherwise that the ‘person’
served at WPMC had authority to accept service of process.” Dkt. No. 20.
The Court agrees with WPMC that plaintiff has not met her burden to show that her
second attempt at service on WPMC was sufficient. Because the identity of the person who
signed the return receipt for plaintiff’s April 12, 2017 correspondence is unclear, see Dkt. No. 18
at ECF p. 21, plaintiff has not shown that she, in fact, served her amended complaint on an
authorized agent of WPMC. 11 The Court does not, however, agree with WPMC that this
requires dismissal of plaintiff’s claims against it based on insufficiency of service of process.
WPMC argues that dismissal of plaintiff’s claims is required because “[t]he Pennsylvania
Supreme Court has held that ‘[t]he rules relating to service of process must be strictly followed,
and jurisdiction of the court over the person of the defendant is dependent upon proper service
having been made.’” Dkt. No. 15-1 at ECF p. 8, quoting Sharp v. Valley Forge Med. Ctr. &
Heart Hosp., Inc., 221 A.2d 185 (Pa. 1966) (further citations omitted); see also Dkt. No. 30 at
ECF p. 11 (arguing that Sharp bars consideration of plaintiff’s request for an extension of time to
serve WPMC). But in a decision issued long after the 1966 decision cited by WPMC, the
Pennsylvania Supreme Court has “clarified the contours of a plaintiff’s obligation to serve a
defendant.” Washington v. Peavy, No. 05-6386, 2006 WL 1117857, at *3 (E.D. Pa. Apr. 25,
Plaintiff’s service of the second amended complaint on counsel for WPMC by
“regular U.S. Mail,” Dkt. No. 13-1 at ECF p. 11, is also insufficient to meet the requirements for
service set forth in Rule 4 of the Federal Rules of Civil Procedure.
2006), citing McCreesh v. City of Phila., 888 A.2d 664, 674 (Pa. 2005). In McCreesh, the
Supreme Court of Pennsylvania explained that cases “requiring strict compliance” – such as the
case cited by WPMC – “hearken back to . . . draconian procedures and replace a factual good
faith inquiry with an objective bright line standard of compliance that is wholly inconsistent with
the concept of good faith.” 888 A.2d at 674. Rejecting this approach, the Pennsylvania Supreme
Court “embrace[d] the logic of” a line of cases which “would dismiss only those claims where
plaintiffs have demonstrated an intent to stall the judicial machinery or where plaintiffs’ failure
to comply with the Rules of Civil Procedure has prejudiced defendant.” Id. The Court held that
“[n]either our cases nor our rules contemplate punishing a plaintiff for technical missteps where
he has satisfied the purpose of the statute of limitations by supplying a defendant with actual
This view of the rules governing service also prevails in the federal courts in this Circuit.
Where “service may be technically improper, but actual notice is nonetheless accomplished, a
district court has broad discretion in deciding whether to dismiss the complaint or to quash
service.” Bank of Am., Nat’l Ass’n v. Martin, No. 12-544, 2013 WL 5128840, at *5 (M.D. Pa.
Sep. 12, 2013) (citations omitted); see Stout St. Funding LLC v. Johnson, 873 F. Supp. 2d 632,
647 (E.D. Pa. 2012) (“Although a party may not ignore the rules, when ‘there is actual notice,
every technical violation of the rule or failure of strict compliance may not invalidate the service
of process.’”) quoting Stranahan Gear Co. v. NL Indus., Inc., 800 F.2d 53, 56 (3d Cir. 1986); cf.
Foman v. Davis, 371 U.S. 178, 181-82 (1962) (“The Federal Rules reject the approach that
pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and
accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.”)
(citation and internal quotations omitted). Thus, in Petrucelli v. Bohringer and Ratzinger, the
Court of Appeals construed Rule 4(m) of the Federal Rules of Civil Procedure “to require a court
to extend time if good cause is shown and to allow a court discretion to dismiss or extend time
absent a showing of good cause.” 46 F.3d 1298, 1305 (3d Cir. 1995). Citing Petrucelli, Plaintiff
has moved for “additional time to re-serve the Pleadings on WPMC” (even though she does not
admit that she has not properly served WPMC). Dkt. No. 29 at ECF p. 5, see also Dkt. No. 40 at
ECF p. 5-6. 12
When determining whether good cause exists for a plaintiff’s failure to effectuate timely
service, the Court may consider such factors as “(1) reasonableness of plaintiff’s efforts to
serve[,] (2) prejudice to the defendant by lack of timely service[,] and (3) whether plaintiff
moved for an enlargement of time to serve.” MCI Telecomms. Corp. v. Teleconcepts, Inc., 71
F.3d 1086, 1097 (3d Cir. 1995) (citation omitted). The “primary focus” of the good cause
inquiry “is on the plaintiff's reasons for not complying with the time limit in the first place.”
Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir.1997), quoting MCI Telecomms., 71 F.3d at 1097.
“[A]bsence of prejudice alone can never constitute good cause to excuse late service.” MCI
Telecomms., 71 F.3d at 1097. Likewise, neither “half-hearted attempts by counsel to effectuate
Before the Court required defendants to file an amended notice of removal,
plaintiff filed a motion seeking to extend the time available to re-serve WPMC, Dkt. No. 29, to
which WPMC filed an opposition, Dkt. No. 30, and plaintiff filed a reply. Dkt. No. 31. Plaintiff
has now filed a second motion seeking to extend the time for service, Dkt. No. 40, WPMC has
filed a response in opposition, Dkt. No. 46, and plaintiff has again filed a reply. Dkt. No. 47.
In the latest round of briefing regarding plaintiff’s request for an extension of time for
service on WPMC, WPMC argues that plaintiff’s motion is in violation of Rule 11 of the Federal
Rules of Civil Procedure. Dkt. No. 46 at ECF p. 4-5. WPMC contends that plaintiff’s filings
“are improper attempts by plaintiff to circumvent a ruling on WPMC’s Motion to Dismiss” and
argues that they “are improper, harassing, are made in an attempt to cause unnecessary delay and
to needlessly increase the cost of litigation for WPMC.” Id. at ECF p. 5.
Sanctions under Rule 11 are warranted “only in the ‘exceptional circumstance where
a . . . motion is patently unmeritous or frivolous.’” Ford Motor Co. v. Summit Motor Prods.,
Inc., 930 F.2d 277. 289 (3d Cir. 1991), cert. denied, 502 U.S. 939 (1991), quoting Doering v.
Union Cnty. Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir. 1988). Such exceptional
circumstances are not present here.
service, nor inadvertence of counsel constitutes good cause for failure to timely serve.”
Plumbers Local Union No. 690 Health Plan. v. Apotex, Corp., No. 16-665, 2017 WL 2242859, at
*4 (E.D. Pa. May 23, 2017) (internal quotations omitted), citing Petrucelli, 46 F.3d at 1298.
Even if good cause does not exist for a plaintiff’s failure to effectuate timely service, the
Court should consider whether to grant a discretionary exception of time.
Factors for the Court to consider when deciding whether to grant a
discretionary extension of time include (1) actual notice of the
action; (2) prejudice to the defendant; (3) statute of limitations; (4)
conduct of the defendant; (5) whether the plaintiff is represented
by counsel; and (6) any other relevant factor.
Plumbers Local Union No. 690 Health Plan., 2017 WL 2242859, at *2.
Plaintiff has argued that additional time to serve WPMC is warranted because “the same
defense attorney represents all defendants. They have had notice of this Complaint since it was
initially filed in State Court in Chester County, Pennsylvania.” Dkt. No. 29 13 at ECF p. 5-6. She
argues that she has shown good cause for any failure to serve WPMC because she “made
reasonable attempts to confirm which defendants defense counsel did represent, and was
inquiring as to whether defense counsel would be accepting service for WPMC . . . .” Id. at ECF
p. 6. She argues that the question of service “is a form over substance issue, which has caused
absolutely no prejudice to WPMC,” noting that WPMC “has already filed motions and responses
to motions in this case.” Id. at ECF p. 7-9. WPMC responds that plaintiff has not shown that she
made a good faith effort to effect service. See Dkt. No. 30 at ECF p. 16; see also Dkt. No. 46 at
ECF p. 13. It argues that plaintiff’s failure to serve WPMC was the result of “mistake and
neglect.” Dkt. No. 30 at ECF p. 16; see also Dkt. No. 46 at ECF p. 16. WPMC also argues that
plaintiff’s request for an extension would be “unduly and manifestly prejudicial to” it. Id.
The Court cites to plaintiff’s original motion at docket number 29 because she
makes no new arguments in her request for an extension of time to serve WPMC.
Given the circumstances surrounding plaintiff’s efforts to serve WPMC, including her
failed attempt to serve WPMC at 1500 Windermere Road, West Chester, Pennsylvania and the
subsequent communications between counsel for the parties regarding the status of service in this
matter, the Court is “compelled to conclude that Plaintiff did not intentionally employ dilatory
tactics to stall this case.” Washington, 2006 WL 1117857, at *4. Nor does the Court find there
is a reason to believe that WPMC has been prejudiced in this matter. 14 Under the circumstances
of this case, the Court finds that a discretionary extension of time is warranted.
It follows that the Court will deny WPMC’s motion to dismiss without prejudice and will
grant plaintiff’s motion seeking to extend the time for service. 15 Because notice is not a
substitute for service, plaintiff will be required to make proper service on WPMC within fourteen
days in order to proceed with her claims against it.
Indeed, the Court finds that it is likely that WPMC had notice of this action prior
to removal either by virtue of its relationship with defense counsel or by virtue of its
relationships with the other defendants. C.f. Lockwood v. City of Phila., 205 F.R.D. 448, 452
(E.D. Pa. 2002) (explaining that, for purposes of determining whether relation back is available
to preserve claims that might otherwise be time-barred under Rule 15 of the Federal Rules of
Civil Procedure, “two types of constructive notice . . . could support . . . an inference of notice:
(1) the ‘shared attorney’ method, where the newly named defendants and an originally named
party are represented by the same counsel, . . . ; and (2) the ‘identity of interest’ method, where
the newly named defendants enjoy some relationship with an originally named defendant strong
enough to permit an inference that notice to one effectively provides notice to the others”) citing
Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 196-200 (3d Cir. 2001). That being said, defense
counsel was not obligated to accept service on behalf of WPMC. “The mere relationship
between a defendant and his attorney does not, in itself, convey authority to accept service.”
Plumbers Local Union No. 690 Health Plan. v. Apotex, Corp., No. 16-665, 2017 WL 2242859, at
*4 (E.D. Pa. May 23, 2017), quoting United States v. Ziegler Bolt & Parts Co., 111 F.3d 878,
881 (Fed. Cir. 1997).
Although WPMC has yet to be properly served, granting its motion to dismiss
“would only add unnecessary steps to the litigation” and “the Federal Rules of Civil Procedure
generally favor the prompt resolution of disputes on the merits . . . .” Perez v. Napolitano, No.
10-348, 2011 WL 149889, at *3 (D.N.J. Jan. 18, 2011); see also Fed. R. Civ. P. 1 (dictating that
the Federal Rules of Civil Procedure “should be construed, administered, and employed by the
court and the parties to secure the just, speedy, and inexpensive determination of every action
Praecipe to Issue a Summons
Finally, on July 17, 2017, plaintiff filed a praecipe to issue a summons for service on
WPMC, Dkt. No. 26, and the Court issued a summons that day. On July 27, 2017, WPMC filed
a motion to strike plaintiff’s praecipe to issue a summons, Dkt. No. 27, which plaintiff opposed.
Dkt. No. 28. The Court dismissed WPMC’ s motion to strike without prejudice to renewal on
the existing papers on September 27, 2017. Dkt. No. 32. WPMC filed a motion seeking to
renew its motion to strike the praecipe to issue a summons on October 5, 2017. Dkt. No. 37.
Plaintiff has filed a renewed opposition to WPMC’s motion to strike her praecipe to issue a
summons and a brief in support thereof. Dkt. Nos. 38, 39. The Court will grant WPMC’s
motion seeking to renew its motion to strike, but will deny the motion itself. In the motion,
WPMC argues that a summons cannot be properly issued because the Court lacks jurisdiction
over WPMC. Dkt. No. 27 at ECF p. 2; see also Dkt. No. 37-3 at ECF p. 3. For the reasons set
forth above, the Court disagrees.
An appropriate Order follows.
/s/ Gerald Austin McHugh
United States District Judge
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