ERIE CPR et al v. PA DEPARTMENT OF TRANSPORTATION et al

Filing 11

MEMORANDUM AND ORDER denying 10 Plaintiff's Motion for Default Judgment against Defendant PA Public Utility Commission. The denial is without prejudice to Plaintiffs right to seek an entry of default and default judgment against PAPUC, if warranted, following proper service of process. Signed by Judge Cathy Bissoon on 06/08/2018. (kas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIE CPR, et al.,
Plaintiffs,
v.
PA DEPARTMENT OF
TRANSPORTATION, et al.,
Defendants.

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Civil Action No. 18-124 Erie
Judge Cathy Bissoon

MEMORANDUM AND ORDER
I. MEMORANDUM
In this civil action, Plaintiffs1 seek an order enjoining the Pennsylvania Public Utilities
Commission (“PAPUC”), the PA Department of Transportation (“PennDOT”), the City of Erie,
Pennsylvania (the “City”), Erie Mayor Joseph Schember (“Mayor Schember”), and the City
Council of Erie (“City Council”) – collectively, the “Defendants” -- from proceeding with the
planned demolition of the City’s “McBride Viaduct” until such time as Plaintiffs are afforded an
opportunity to challenge the demolition decision in an on-the-record public hearing before this
Court. Presently pending before the Court is a motion (Doc. 10) by Plaintiffs for a default
judgment against PAPUC. For the reasons that follow, Plaintiffs’ motion for a default judgment
will be DENIED.

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The Plaintiffs in this action are: ERIE CPR, Beary Clark, Harry Euell, Michael Keys, Judy Lynch, Minister Luchetta
Manus, Cynthia Muhammad, Noel Remigio, Abdulla Washington, Adam Trott, Lisa Austin, and Taquanta Gray
(collectively, “Plaintiffs”). Reverend Charles Mock was originally among the named Plaintiffs in this case, but his
claims were voluntarily dismissed on May 11, 2018. (Doc. 8.)

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A. Factual and Procedural Background
Plaintiffs commenced this action on April 30, 2018 with the filing of a three-count
complaint alleging violations of their rights under Title VI of the Civil Rights Act of 1964, 42,
U.S.C. §§2000d et seq., 49 C.F.R. §§21.1 et seq., and the Fourteenth Amendment’s Equal
Protection Clause in connection with the Defendants’ planned demolition of the McBride Viaduct.
(Doc. 1.) The following day, Plaintiffs filed a motion for a preliminary injunction and obtained
summons for all of the Defendants. (Docs. 3, 4 and 5.)
On May 16, 2018, Plaintiffs filed their proof of service. (Doc. 9.) Therein, Plaintiffs’
counsel attested that he served copies of the Complaint and summons upon PAPUC and PennDOT
via certified mailings addressed to Josh Shapiro, the Pennsylvania Attorney General. (Doc. 9,
Doc. 9-1.) The record shows that the packages were separately signed for on May 3, 2018 and
May 7, 2018, respectively, by one Mary Dumaresq. (Doc. 9-1 at 5; Doc. 9 at 5.) Plaintiff attempted
to serve the City, Mayor Schember, and City Council by sending copies of the Complaint and
summons via certified mail addressed to Edward Betza, Esq., the City’s solicitor. (Docs. 9-3, 92, and 9-4.) Each of these three mailings was received, but not signed for, on May 3, 2018. (Id.)
To date, no counsel has entered an appearance on behalf of the Defendants and no
Defendant has answered or otherwise responded to the Complaint. On June 5, Plaintiff filed the
instant motion for default judgment against Defendant PAPUC. (Doc. 10.)
B. Analysis
“Before a plaintiff can obtain a default judgment pursuant to Rule 55(b), a plaintiff must
secure an entry of default per Rule 55(a).” Allaham v. Naddaf, 635 F. App’x 32, 36 (3d Cir. 2015)
(citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2682, at 13 (3d ed. 1998)). “Once default is entered against a specific defendant,
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Rule 55(b) allows the plaintiff to request that the clerk or the court enter a default judgment against
that defendant, depending on whether the claim is for a sum certain.” Id.
When passing upon a motion for default judgment, a court is required to make a threshold
determination regarding any jurisdictional defects. Allaham, 635 F. App’x at 36 (citing Bolden v.
Se. Pennsylvania Transp. Auth., 953 F.2d 807, 812 (3d Cir.1991)). This includes consideration of
whether proper service of the complaint has been effectuated because, in the absence of proper
service, the court lacks personal jurisdiction over the defendants named in the complaint. See
Omni Capital Int’l. Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987) (“Before a federal
court may exercise personal jurisdiction over a defendant, the procedural requirement of service
of summons must be satisfied.”); Grand Ent. Group, Ltd. V. Star Media Sales, Inc., 988 F.2d 476,
492 (3d Cir. 1993) (“A district court's power to assert in personam authority over parties defendant
is dependent not only on compliance with due process but also on compliance with the
technicalities of Rule 4.”); Lampe v. Xouth, Inc., 952 F.2d 697, 701 (3d Cir. 1991) (“A federal
district court acquires personal jurisdiction over a defendant when the plaintiff serves the defendant
with the complaint in a manner specified by Rule 4 of the Federal Rules of Civil Procedure.”);
Dougherty v. Dupes, Civil Action No. 1:17-cv-1541, 2018 WL 1696651, at *4 (W.D. Pa. April 6,
2018) (“A defendant is not properly brought before the court in the matter if it has not been served
with process, . . . and the defendant has no duty to defend against the complaint until such time as
it properly has been served.”) (citations omitted); see Wright, Miller, et al., & §2682 at 14 (“Before
a default can be entered, the court must have subject-matter jurisdiction and jurisdiction over the
party against whom the judgment is sought,[ ] which also means that the party must have been
effectively served with process.[ ]”) (footnotes omitted).

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Proper service of original process is governed by Rule 4 of the Federal Rules of Civil
Procedure. For purposes of the instant motion, Rule 4(j)(2) supplies the relevant standard. It
provides that states, municipal corporations, or other state-created governmental organizations
must be served by: “(A) delivering a copy of the summons and of the complaint to its chief
executive officer; or (B) serving a copy of each in the manner prescribed by that state’s law . . . .”
Fed. R. Civ. P. 4(j)(2). The relevant rule for service under Pennsylvania law is Rule 422 of the
Pennsylvania Rules of Civil Procedure, which states that: “Service of original process upon the
Commonwealth . . . or a department, board, commission or instrumentality of the Commonwealth,
. . . shall be made at the office of the defendant and the office of the attorney general by handing a
copy to the person in charge thereof.” Pa. R. Civ. P. 422(a).
In effectuating service, a plaintiff “may not ‘pick and choose individual provisions from
the federal and Pennsylvania rules to manufacture proper service[.]’” Dougherty, 2018 WL
1696651, at *5 (quoting Infantino v. W. Wyoming Borough, No. Civ. A. 3:12-2539, 2013 WL
1345628, at * (M.D. Pa. Apr. 2, 2013)). Rather, the plaintiff “must comply with either the federal
procedure or the state procedure” that is incorporated into Rule 4(j)(2)(B). Id. (citing Infantino,
2013 WL 1345628, at *3) (emphasis in the original). Furthermore, regardless which method of
service the plaintiff chooses, he or she must strictly comply with the aforementioned rules.
Dougherty, 2018 WL 1696651, at *6 (noting that “Pennsylvania law, like federal law, requires
strict compliance with its service of process rules”).
In this case, Plaintiffs have failed to obtain an entry of default, and their request for a default
judgment is therefore premature.

Beyond this, Plaintiffs have failed to satisfy the service

requirements of either Federal Rule of Civil Procedure 4(j)(2)(A) or Pennsylvania Rule 422(a).
As a result, the complaint has not been properly served on PAPUC.

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Plaintiffs have failed to satisfy the federal method of service because they did not deliver
the complaint and summons to the relevant chief executive officer. Fed. R. Civ. P. 4(j)(2)(A). The
Pennsylvania Attorney General is not the chief executive officer of PAPUC and, furthermore, a
certified mailing does not constitute “delivery” within the meaning of Rule 4(j)(2)(A). On the
contrary, “[d]elivery” for purposes of Rule 4 means personal delivery through use of a process
server rather than delivery through the use of certified mail. See White v. Green, 382 F. App’x
199, 202 (3d Cir. 2010) (plaintiff failed to comply with the service requirements of Rule 4(j)(2)
when he sent a copy of the complaint, via certified mail, to a county correctional facility that was
named as a defendant); Dougherty, 2018 WL 1696651, at *12 (noting that “Rule 4(j)(2)(A)
requires service upon a state party by delivering, and not mailing, a copy of the summons and
complaint”) (emphasis in the original); Fulton v. Virgin Islands Bureau of Internal Revenue, No.
CV 2011-132, 2014 WL 1345421, at *1 (D.V.I. Apr. 4, 2014) (discussing the requirements of Fed.
R. Civ. P. 4(j)(2) and noting that “[d]elivery in Rule 4 has a meaning distinct from use of
‘registered or certified mail’” and “requires use of a process server, not use of the United States
Postal Service”) (citing Fed. R. Civ. P. 4(i)); Moody v. Nat'l Elec. Warranty, No. 3:11-CV-106,
2012 WL 4981993, at *4 (W.D. Pa. Oct. 17, 2012) (holding that certified mailing did not constitute
proper “delivery” of a complaint and summons upon a corporate defendant for purposes of Rule
4(h)(1)(B)).
Plaintiffs also failed, in numerous ways, to satisfy the requirements of Pennsylvania Rule
422(a). First, they failed to make service upon both the Attorney General’s office and PUPUC’s
office. See Pa. R. Civ. P. 422(a) (requiring that service be made “at the office of the defendant
and the office of the attorney general”) (emphasis supplied); Dougherty, 2018 WL 1696651, at
*12 (discussing Rule 422(a) and holding that plaintiff failed to properly effectuate service upon

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Commonwealth defendants when complaint was sent only to the state attorney general’s office);
Menez-Vaz v. Com. of Pa. Dep’t of Public Welfare, Civ. A. No. 94-2298, 1995 WL 118237, at *1
(E.D. Pa. Mar. 10, 1995) (plaintiff who sued Commonwealth Department of Public Welfare was
required to serve both that office and the office of the attorney general; service on Pennsylvania
Attorney General’s office alone was insufficient).
Second, Plaintiffs chose an improper method of service.

Pennsylvania Rule 422(a)

explicitly requires personal delivery of the summons and complaint by “handing a copy to the
person in charge” of the relevant office; a certified mailing of the complaint clearly does not satisfy
this requirement. See White, 382 F. App’x at 202 (certified mailing to county correctional facility
did not satisfy service of process on a political subdivision where Pennsylvania Rule 422(b)
required the plaintiff to effectuate service by “handing a copy” of the complaint to one of three
categories of recipients); Dougherty, 2018 WL 1696651, at *12 (“Pennsylvania procedure for
service, as incorporated into Federal Rule of Civil Procedure 4(j)(2)(B), does not permit original
service of process by mail upon the Commonwealth of Pennsylvania or upon an officer,
department, board, commission or instrumentality of the Commonwealth . . . .”); Jones v. Quain,
No. 97-1153, 1997 WL 197316, at *1 (E.D. Pa. Apr. 18, 1997) (“In the absence of any request for
a waiver of service under Rule 4(d),[ ] neither Rule 4 of the Federal Rules nor Rule 422 of the
Pennsylvania Rules authorizes service of initial process on the Commonwealth or its officers by
certified mail.”) (internal footnote omitted).
Finally, to the extent Plaintiffs attempted service on the office of the Pennsylvania Attorney
General, they failed to establish that the recipient of the certified mailing is the relevant “person in
charge” of the office. Pa. R. Civ. P. 422(a); see Dixon v. Phila. Housing Auth., 185 F.R.D. 207,
210 (E.D. Pa. 1999) (“The relevant Pennsylvania rule requires that service on an instrumentality

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of the Commonwealth ‘shall be made at the office of the defendant and the office of the attorney
general by handing a copy to the person in charge thereof.’ Pa.R.Civ.P. 422(a). Service on an
unidentified person is insufficient to comply with this rule.”).
“Personal jurisdiction . . . is an essential element of the jurisdiction of a district ... court,
without which the court is powerless to proceed to an adjudication.” Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 584 (1999) (internal quotation marks and citation omitted) (second ellipsis in
the original). Because Plaintiffs have failed to make proper service of the complaint and summons
upon PAPUC, this Court has no jurisdiction over that Defendant and cannot enter a default or
default judgment against it. See White v. Green, 382 F. App’x 199, 202 (3d Cir. 2010) (holding
that the district court properly denied plaintiff’s motion for default judgment against a county
correctional facility which was not properly served) (citing Gold Kist Inc. v. Laurinburg Oil Col,
756 F.2d 14, 19 (3d Cir. 1985) (“A default judgment entered when there has been no proper service
of complaint is, a fortiori, void, and should be set aside.”)); Dougherty, 2018 WL 1696651, at *13
(“Doughtery did not make proper service of original process upon any of the defendants, none are
in default, and, accordingly, entry of default or default judgment is inappropriate.”). Accordingly,
the following Order is entered.

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II. ORDER
For the reasons stated above, Plaintiffs’ motion for a default judgment (Doc. 10) is
DENIED. The denial is without prejudice to Plaintiff’s right to seek an entry of default and default
judgment against PAPUC, if warranted, following proper service of process.2

IT IS SO ORDERED.

June 8, 2018

s/ Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All Counsel of Record

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Although the Court is not presently rendering any opinion on the matter, Plaintiffs may wish to consider whether, in
light of the Court’s ruling, service of original process has been properly effectuated relative to the other named
Defendants in this case.

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