Archbold v. Cracker Barrel Old Country Store, Inc. et al
Filing
17
MEMORANDUM AND ORDER granting Cracker Barrel's motion to dismiss 10 , DISMISSING pltf's complaint without prejudice, & directing Clrk of Ct to CLOSE case. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 9/17/13. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SARAH ARCHBOLD,
:
:
Plaintiff
:
:
v.
:
:
CRACKER BARREL OLD COUNTRY :
STORE, INC., et al.,
:
:
Defendants.
:
CIVIL ACTION NO. 3:12-CV-2212
(Chief Judge Conner)
MEMORANDUM
Presently before the court, in the above-captioned matter, is a motion (Doc.
10) to dismiss the complaint (Doc. 1), pursuant to Federal Rules of Civil Procedure
12(b)(2), 12(b)(4), and 12(b)(5), filed by Cracker Barrel Old Country Store, Inc.,
(“Cracker Barrel”). The parties have fully briefed the issues and the motion is ripe
for disposition. For the reasons that follow, the court will grant Cracker Barrel’s
motion in its entirety.
I.
Factual and Procedural History
The matter sub judice arises out of the purchase of several gift certificates
and/or prepaid gift cards by Sarah Archbold (“Archbold”) from Cracker Barrel,
CVS Pharmacy, Inc. (“CVS”), and other retail business entities whose identities
are not yet known. Archbold contends that those gift certificates and/or prepaid
gift cards contained deceptive expiration dates in violation of the Electronic Fund
Transfer Act (“EFTA”), 15 U.S.C. §§ 1693 et seq., as amended by the Credit Card
Accountability, Responsibility, and Disclosure Act (“CARD Act”) of 2009, 123 Stat.
1734. Archbold further seeks a declaration from the court that this matter may
proceed as a class action pursuant to Federal Rule of Civil Procedure 23 and the
Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d).
Archbold commenced this action on November 6, 2012, with the filing of a
complaint. (Doc. 1). Counsel for Archbold twice moved for an extension of time in
which to pay the court’s filing fee, and on December 18, 2012, counsel tendered the
filing fee of $350 and the Clerk of Court docketed receipt of the same. (Doc. 7). On
March 1, 2013, a summons issued. (Doc. 8). In the portion of the summons tasking
the plaintiff to identify each defendant by name and address, Archbold indicated
“SEE COMPLAINT.” (Id.). Although the complaint purports to name multiple
defendants, only one summons issued. (See id.). Archbold concedes that the
summons fails to identify all parties to this action as required by Federal Rule of
Civil Procedure 4(a). (Doc. 13 at 2). Archbold also concedes that because no proof
of service has yet been filed as required by Rule 4(l), service was not proper. (Id.).
Cracker Barrel now moves to dismiss the claims against it pursuant to
Federal Rules of Civil Procedure 12(b)(2), 12(b)(4) and 12(b)(5) for lack of personal
jurisdiction, insufficient process, and insufficient service of process. Archbold has
filed responsive papers conceding that the summons and service were deficient but
contending that “good cause” exists to excuse these deficiencies. The motion has
now been fully briefed (Docs. 11, 12, 13, 16) and is ripe for disposition.
2
II.
Standard of Review
Rule 4 of the Federal Rules of Civil Procedure “sets forth the procedure by
which a court obtains personal jurisdiction over the defendant.” Ayres v. Jacobs &
Crumplar, P.A., 99 F.3d 565, 569 (3d Cir. 1996). The Rule prescribes the process for
properly issuing and serving a summons. FED . R. CIV . P. 4. Pursuant to Rule 4, a
summons must, inter alia, name each individual plaintiff and defendant and “be
directed to the defendant.” FED . R. CIV . P. 4(a)(1)(A), (B). When a complaint names
more than one defendant, a separate summons “must be issued for each defendant
to be served.” FED . R. CIV . P. 4(b). A defendant may move to dismiss the complaint
or quash service when a plaintiff fails to comply with Rule 4's requirements for the
form and method of serving process. FED . R. CIV . P. 12(b)(4), (b)(5).
In the case of motions challenging the sufficiency of process or method of
service, the burden of proof lies with the party raising the challenge. See 2 MOORE ’S
FEDERAL PRACTICE § 12.33[1] (3d ed. 2013); see also Grand Ent. Group, Ltd. v. Star
Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993); Snyder v. Bender, No. 1:09-CV927, 2010 U.S. Dist. LEXIS 130438 (M.D. Pa. Nov. 16, 2010). The movant must be
specific in its objections and identify the specific manner in which the plaintiff has
failed to satisfy the summons or service provision utilized. 2 MOORE ’S § 12.33[1].
III.
Discussion
Cracker Barrel contends, and Archbold does not dispute, that both the form
of the summons issued and the method of service of that summons are imperfect
pursuant to Federal Rule of Civil Procedure 4, (see Doc. 13 at 2 (“Plaintiff does not
3
contend that proper service was made under the rules.”)), and thus the only issue to
be resolved by the court is what consequence to assign to Archbold’s abject failure
to comply with the Rules.1 Cracker Barrel posits dismissal is appropriate pursuant
to both Rule 12(b)(2) for lack of personal jurisdiction and Rules 12(b)(4) and (b)(5),
for defective process and service of process. Archbold, acknowledging dismissal as a
possibility, suggests that the court instead “direct issuance of a new summons” in
compliance with Rule 4 and extend the time for service of the summons pursuant to
Rule 4(m). (Doc. 13 at 2-3). Ultimately, a review of the law governing the issuance
and function of summonses, and in particular the relationship between Rule 4 and
Rule 12(b)(2), compels the court to dismiss this action for lack of jurisdiction.2
It is axiomatic that absent strict compliance with Rule 4's summons and
service requirements, “a court ordinarily may not exercise power over a party the
complaint names as a defendant.” Murphy Bros. v. Michetti Pipe Stringing, 526
U.S. 344, 350 (1999) (quoting Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S.
97, 104 (1987) (“Before a . . . court may exercise personal jurisdiction over a
1
Rule 4(a)(1) mandates, inter alia, that a summons identify “the court and the
parties” and “be directed to the defendant.” FED . R. CIV . P. 4(a)(1)(A)-(B). Here, the
summons (Doc. 8) does not identify the defendants individually as required by Rule
4(a)(1)(A) and was not directed to Cracker Barrel as required by Rule 4(a)(1)(B). It
further was not issued to “each defendant to be served” as mandated by Rule 4(b).
Accordingly, the court’s review of the record confirms that Archbold’s concessions
are appropriate.
2
Because the court concludes that dismissal is overwhelming supported by
Rule 12(b)(2) and Third Circuit precedent interpreting the same, the court will not
address the parties’ arguments with respect to Rules 12(b)(4) and (b)(5).
4
defendant, the procedural requirement of service of summons must be satisfied.”);
Miss. Pub. Corp. v. Murphree, 327 U.S. 438, 444-45 (1946) (“Service of summons is
the procedure by which a court . . . asserts jurisdiction over the person of the party
served.”)). To that end, the Third Circuit has observed that “failure of a plaintiff to
obtain valid process from the court” deprives a court of personal jurisdiction over
the defendant and “is fatal to the plaintiff’s case.” Ayres, 99 F.3d at 569 (dismissing
case when summons was not signed and sealed by the clerk as required by Rule
4(a)(1)(F) and (G)). Specifically, the panel in Ayres held that when a summons is
prima facie defective and violative of Rule 4, “such suit should be dismissed under
Federal Rule of Civil Procedure 12(b)(2).” Id. The Circuit further held that even a
properly issued summons is nonetheless ineffective for purposes of conferring
personal jurisdiction if it has not been served in compliance with Rule 4's service of
process provisions. Id. at 570.
Archbold’s counsel does not dispute that both the summons itself and service
thereof fall well short of complying with Rule 4. (Doc. 13 at 1-2). Counsel concedes
that failure to identify all parties in the summons as required by Rule 4(a)(1) “does
seem a significant oversight” which “possibly” renders the summons defective, that
service was not proper under Rule 4, and that “no proof of service was filed” as
required, thus establishing an unabashed violation of Rule 4's requirements for
both the form of a summons and for service of process. (Id.). Indeed, counsel goes
so far as to admit that she “reasoned that . . . [the parties] would be arguing this or a
similar motion” before it was even filed, indicating, as Cracker Barrel suggests, that
5
counsel was aware that the summons and service thereof were imperfect but simply
disregarded those deficiencies.3 (Id. at 2). Rather than contesting the fact of the
Rules violation, Archbold’s counsel simply posits that Rule 4(m), which governs
timing for service, compels the court to grant counsel an extension of time in which
to perfect service because any omissions on her part were made in good faith. (Id.
at 3 (quoting FED . R. CIV . P. 4(m)). Counsel’s reliance on Rule 4(m) is misplaced.
In addressing a similar argument in Ayres, the Circuit panel concluded that
Rule 4(m)’s provisions for extensions of time for service are immaterial when the
summons itself is preliminarily found to be defective, explaining that “under such
circumstances, it becomes unnecessary for the district courts to consider such
questions as whether service was properly made, or whether an extension to the
120-day service period should be granted under Rule 4(m).” Id. Thus, while such
an analysis is appropriate in concluding whether plaintiffs had good cause for their
failure to make service of a proper summons within the time allotted under the
Rules, a good cause analysis “serves no purpose here,” where the summons itself is
defective and divests the court of personal jurisdiction from the outset. Id. at 56970. The court thus rejects Archbold’s position that Rule 4(m) applies and permits
3
Counsel for Archbold emphasizes that it was the clerk of court and not
counsel who issued and filed the defective summons, inferring that counsel should
not be held responsible for errors that were not entirely her own. The Ayres panel
expressly rejected this position, noting that the burden for correcting a defective
summons, whether drafted by counsel or by the court, remains at all times with
counsel. See Ayres, 99 F.3d at 569 n.3 (rejecting position that clerk should not have
filed improper proofs of service based on invalid summons).
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counsel to cure a defective summons.4 Because the record indisputably establishes
that both the summons and method of service at issue sub judice entirely fail to
comply with Federal Rule of Civil Procedure 4, the court is constrained to dismiss
Archbold’s complaint for lack of personal jurisdiction pursuant to Federal Rule of
Civil Procedure 12(b)(2).5
IV.
Conclusion
For the foregoing reasons, the court will grant Cracker Barrel’s motion (Doc.
10) to dismiss this action for lack of personal jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(2). An appropriate order follows.
/S/ CHRISTOPHER C. CONNER
CHRISTOPHER C. CONNER
Chief Judge, Middle District of Pennsylvania
Dated:
September 17, 2013
4
The court is compelled to note, notwithstanding Rule 4(m)’s inapplicability,
that counsel’s characterization of her efforts as having been made in “good faith” is,
at best, an overstatement; indeed, that characterization is entirely belied by the
record which, in addition to containing a defective summons, is littered with
untimely and procedurally inappropriate filings, (see Doc. 5 (motion for extension
of time to pay filing fee filed two days after fee was due); Doc. 11 (premature
responsive papers not contemplated by Local Rules for motion practice), Doc. 13
(untimely brief in opposition to Cracker Barrel’s motion to dismiss)), unequivocally
establishing counsel’s disregard for the Federal Rules of Civil Procedure.
5
Only Cracker Barrel has filed a motion to dismiss, but the court’s holding is
dispositive to Archbold’s complaint as a whole, compelling dismissal of this action
in its entirety. Specifically, the record reveals that no summons naming CVS or any
other party as a defendant has ever issued, and the court is thus without personal
jurisdiction over CVS or any other defendant. Pursuant to Ayres, the court is thus
compelled to dismiss the complaint as to all defendants pursuant to Rule 12(b)(2).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SARAH ARCHBOLD,
:
:
Plaintiff
:
:
v.
:
:
CRACKER BARREL OLD COUNTRY :
STORE, INC., et al.,
:
:
Defendants.
:
CIVIL ACTION NO. 3:12-CV-2212
(Chief Judge Conner)
ORDER
AND NOW, this 17th day of September, 2013, upon consideration of the
motion to dismiss (Doc. 10) by Cracker Barrel Old Country Store, Inc., (“Cracker
Barrel”), and for the reasons set forth in the accompanying memorandum, it is
hereby ORDERED that Cracker Barrel’s motion to dismiss (Doc. 11) is GRANTED,
and plaintiff’s complaint is DISMISSED without prejudice. The Clerk of Court is
directed to CLOSE this case.
/S/ CHRISTOPHER C. CONNER
CHRISTOPHER C. CONNER
Chief Judge, Middle District of Pennsylvania
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