UNITED STATES OF AMERICA v. DEUERLING

Filing 60

ORDER granting 39 Motion to Dismiss. Count VIII of Defendant's Amended Third Party Complaint is dismissed. Signed by Judge Alan N. Bloch on 1/25/2018. (lwp)

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

UNITED STATES OF AMERICA,

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Plaintiff,
v.
MELISSA A. DEUERLING,
Defendant, Counterclaimant,
and Third Party Plaintiff,
v.
G.C. SERVICES, L.P., et al.,
Third Party Defendants.

Civil No. 14-642

ORDER
AND NOW, this 25th day of January, 2018, upon consideration of the Motion of Third
Party Defendants, Thomas I. Puleo and KML Law Group, P.C., to Dismiss Defendant’s
Amended Counterclaim/Cross Claim and Third Party Complaint (Doc. No. 39) and
memorandum in support thereof (Doc. No. 40), filed in the above-captioned matter on June 16,
2017, and in further consideration of the brief in opposition thereto (Doc. No. 45), filed by
Defendant and Third Party Plaintiff Melissa A. Deuerling (hereinafter “Third Party Plaintiff”) in
the above-captioned matter on August 7, 2017, 1
IT IS HEREBY ORDERED that, for the reasons set forth herein, said Motion is
GRANTED. IT IS FURTHER ORDERED, pursuant to Federal Rule of Civil Procedure
Third Party Plaintiff mistakenly refers to Third Party Defendant Thomas I. Puleo as
“Thomas I. Pulco.”
1

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12(b)(5), that Count VIII of the Amended Counterclaim/Cross Claim and Third Party Complaint
is hereby DISMISSED.
I. Background
The Court notes at the outset that, because Third Party Plaintiff is pro se, the Court has
consistently granted her a great deal of leeway in this action wherein the United States seeks to
collect on student loan debts allegedly incurred by Third Party Plaintiff and owed to the United
States. The Amended Complaint, filed on August 14, 2014, contends simply that Third Party
Plaintiff executed a series of promissory notes to secure student loans, and that she defaulted on
her obligations and is now indebted to the United States as reinsurer of the loans in the amount of
$23,417.93, plus a filing fee, interest, and costs. (Doc. No. 8). On September 3, 2014, Third
Party Plaintiff filed a Motion to Dismiss the Amended Complaint (Doc. No. 11), which the Court
denied. Third Party Plaintiff subsequently filed an Answer to Amended Complaint, and
Counterclaim. (Doc. No. 20). In response, the Government filed a Motion to Dismiss
Defendant’s Counterclaims. (Doc. No. 22).
On July 20, 2015, instead of filing a brief in opposition to the Government’s motion,
Third Party Plaintiff filed a Third Party Complaint (Doc. No. 24) which, as the Court noted at the
time, was essentially an amended pleading that elaborated on her previously filed Answer to
Amended Complaint, and Counterclaim. The Court declared the Government’s Motion to
Dismiss moot, and ordered the Government to respond to the counterclaims contained in the
Third Party Complaint. (Doc. No. 25). In response, the Government filed a new Motion to
Dismiss Defendant’s Counterclaim (Doc. No. 26), and the Court ordered Third Party Plaintiff to
respond.

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On November 9, 2015, Third Party Plaintiff responded by filing yet another pleading,
entitled “Amended Counterclaim/Cross Claim and Third Party Complaint” (Doc. No. 31)
(hereinafter, “Amended Third Party Complaint”). By this time, the Amended Third Party
Complaint included claims against the Government under the Federal Tort Claims Act, the Fair
Debt Collection Practices Act, and the Privacy Act; a claim against Thomas I. Puleo and KML
Law Group, P.C. under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et
seq.; as well as claims against a number of other entities. The Court, once again, denied the
Government’s previously filed motion to dismiss because it addressed what was no longer the
most recent pleading, and ordered the Government to file a response to the claims in the
Amended Third Party Complaint. (Doc. No. 32).
On December 10, 2015, the Government filed Plaintiff’s and Third Party Defendants’
Motion to Dismiss Defendant’s Amended Counterclaim (Doc. No. 33). The Court granted the
motion on September 28, 2016, dismissing all of Third Party Plaintiff’s claims against the
Government and its agencies.
On June 16, 2017, Third Party Defendants Thomas I. Puleo and KML Law Group, P.C.
(“Third Party Defendants”) filed their Motion to Dismiss Defendant Melissa A. Deuerling’s
Amended Third Party Complaint, which is the motion that is currently before the Court. Among
the arguments that Third Party Defendants present is the contention that, because Third Party
Plaintiff has failed to serve them with summonses and copies of the Amended Third Party
Complaint in a timely manner in accordance with the Federal Rules of Civil Procedure, her claim
against them should be dismissed.

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II. Legal Analysis: Insufficient Service of Process
The Federal Rules of Civil Procedure expressly provide that a court may dismiss a case
based upon insufficient service of process. See Fed. R. Civ. P. 12(b)(5). Moreover, “[t]he party
asserting the validity of service bears the burden of proof on that issue.” Grand Entertainment
Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993).
Federal Rule of Civil Procedure 4(b) states that “[o]n or after filing the complaint, the
plaintiff may present a summons to the clerk for signature and seal. If the summons is properly
completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant.”
Rule 4(c) provides further that “[a] summons must be served with a copy of the complaint. The
plaintiff is responsible for having the summons and complaint served within the time allowed by
Rule 4(m).” When this case commenced, Rule 4(m) specified that “[i]f a defendant is not served
within 120 days after the complaint is filed, the court—on motion or on its own after notice to
the plaintiff—must dismiss the action without prejudice against that defendant or order that
service be made within a specified time.” 2 Rule 4(m) further provides that “if the plaintiff
shows good cause for the failure, the court must extend the time for service for an appropriate
period.” 3
The Court of Appeals for the Third Circuit has relied upon a two-step process in
determining whether to extend the time for service set forth in Rule 4(m). See Petrucelli v.
Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995). A district court must first analyze
whether good cause exists for the party’s failure to comply with the time limit. See id. Good
The Court notes that, although the 2015 amendments to the Federal Rules of Civil
Procedure shortened the time for service from 120 days to 90 days, this change has no effect on
the analysis in this case.
2

Rule 4(m) applies to service of third party complaints brought under Rule 14(a). See
Roberts v. Leasure, No. 05-3495, 2006 WL 1967335, at *3 (E.D. Pa. July 11, 2006).
3

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cause is primarily determined based on a party’s asserted reasons for the delay. See Boley v.
Kaymark, 123 F.3d 756,758 (3d Cir. 1997). In determining whether good cause exists, courts
have considered factors such as “‘(1) the reasonableness of plaintiff’s efforts to serve; (2)
whether the defendant is prejudiced by the lack of timely service; and (3) whether the plaintiff
moved for an enlargement of time.’” Holmes v. St. Vincent Health Center, No. 06-199E, 2007
WL 2541790, at *2 (W.D. Pa. Aug. 31, 2007) (quoting Steele v. HCI Direct, No. 02-4347, 2004
WL 1699611, at *1 (E.D. Pa. July 29, 2004)).
If the court finds that good cause exists for the failure to serve, then an extension of time
must be granted. See McCurdy v. American Bd. of Plastic Surgery 157 F.3d 191, 196 (3d Cir.
1998). In the absence of good cause, however, the court must decide whether to grant a
discretionary extension of time. See MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086,
1098 (3d Cir. 1995); Petrucelli, 46 F.3d at 1305. “In deciding whether to exercise discretion to
extend time for service in the absence of a finding of good cause, the Advisory Committee Note
to the 1993 amendment states that ‘[r]elief may be justified for example, if the applicable statute
of limitations would bar the refiled action, or if the defendant is evading service or conceals a
defect in attempted service . . . . The district court should also take care to protect pro se
plaintiffs from consequences of confusion or delay attending the resolution of an in forma
pauperis petititon.’” Banks v. United States Marshals Service, No. 15-127, 2016 WL 241675, at
*3 (W.D. Pa. Jan. 5, 2016). Courts, when deciding whether to grant a discretionary extension,
may consider factors including actual notice of the action, prejudice to the defendant, statute of
limitations, conduct of the defendant, whether the plaintiff is represented by counsel, and any
other relevant factor. See Carinci v. 7-Eleven, Inc., No. 15-1294, 2016 WL 1319724, at *2
(W.D. Pa. Apr. 5, 2016). Finally, “a district court has wide discretion in deciding whether to

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extend time for service under Rule 4(m).” Gonzalez v. Thomas Built Buses, Inc., 268 F.R.D.
521, 528 (M.D. Pa. 2010).
In the present case, Third Party Plaintiff undoubtedly failed to effectuate service within
the prescribed 120-day period. In fact, at the time Third Party Defendants filed their Motion to
Dismiss, Third Party Plaintiff had yet to present a single summons to the Clerk of Court to be
signed, sealed and issued after filing any of her various pleadings. More specifically, Third Party
Plaintiff filed her Amended Third Party Complaint on November 9, 2015, but when Third Party
Defendants filed their Motion to Dismiss on June 16, 2017, the docket does not indicate that any
summons had been submitted to the Clerk of Court, although well over a year had passed since
the 120-day service period had expired. Thus, the Court must consider whether good cause
exists here for such an extensive delay.
With regard to the reasonableness of her efforts to serve, Third Party Plaintiff essentially
admits that she never served Third Party Defendants in this case, but she first argues that she was
not required to do so because Third Party Defendants, in actuality, “waived” service by entering
a general appearance and asserting affirmative defenses, and by entering the Court’s ECF
electronic service agreement. The Court notes at the outset that the procedure and requirements
for waiver of service under the Federal Rules of Civil Procedure are set forth in detail in Rule
4(d), and the actions of Third Party Defendants, as cited by Third Party Plaintiff, do not
constitute such a waiver as parties to this case.
While Federal Rule of Civil Procedure 4(d) provides that “[a]n individual, corporation, or
association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary
expenses of serving the summons,” the Rule sets forth a specific procedure for obtaining a
waiver of service from an entity. Rule 4 clearly provides that a “plaintiff may notify such a

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defendant that an action has been commenced and request that the defendant waive service of a
summons.” The Rule also specifies that such notice and request must be in writing, must provide
certain specific information, must be accompanied by a waiver form and copies of the complaint,
and must fulfill various other requirements. Third Party Plaintiff has not contended that she took
any of these steps in order to obtain a waiver of service from Third Party Defendants.
With regard to service of process under Pennsylvania law, applicable in this case
pursuant to Federal Rules of Civil Procedure 4(e)(1) and 4(h)(1)(a), in addition to the methods of
service provided by Pennsylvania Rule of Civil Procedure 402(b), Pennsylvania courts have also
recognized that “‘service of process may be obtained through waiver or consent.’” Cmiech v.
Electrolux Home Products, Inc., 520 F. Supp. 2d 671, 675 (M.D. Pa. 2007) (quoting Fleehr v.
Mummert, 857 A.2d 683, 685 (Pa. Super. Ct. 2004)). Thus, “[o]ne can become party to a suit,
waiving service of process, by voluntary appearance.” Id. Courts have found that “‘[a]
defendant manifests an intent to submit to the court’s jurisdiction when the defendant takes some
action (beyond merely entering a written appearance) going to the merits of the case, which
evidences an intent to forego objection to the defective service.’” Id. (quoting Fleehr, 857 A.2d
at 685 (internal quotation omitted)). An example of a case where a defendant submitted to the
jurisdiction of the court, thus waiving any objection to the failure to comply with service of
process, includes “where a defendant filed and served interrogatories on the plaintiff, answered a
complaint by another party in the case, and filed a complaint to join another party as an
additional defendant, before filing preliminary objections to the service of process.” Id. Also,
where a “defense attorney went before the court and agreed to consolidate a related arbitration
action with the plaintiff’s case, the court held that ‘[c]ounsel’s actions were taken on Appellant’s
behalf and must be seen as recognition of acceptance of the . . . complaint, for absent such there

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was nothing to consolidate.’” Id. (quoting Fleehr, 857 A.2d at 685). Thus, in determining
whether waiver of service of process has occurred, courts have considered the nature of the
defendant’s interactions with the court and whether the defendant’s communications reach the
merits of the case. See DiLoreto v. Costigan, Nos. 08-989, 08-990, 2008 WL 4072813, at *6
(E.D. Pa. Aug. 29, 2008).
In this case, the actions of Third Party Defendants that are cited by Third Party Plaintiff
do not rise to the level necessary to constitute waiver of service of process. The Court notes that
Third Party Defendants entered their appearance in this case as attorneys for the Government—
not as parties to the case—in compliance with Local Civil Rule 83.2(C).4 The Court also notes
that Third Party Defendants entered into the ECF electronic service agreement in compliance
with the Court’s Standing Order on Electronic Case Filing Policies and Procedures, as required
by attorneys who represent parties in cases before the Court. Local Civil Rule 5.6 states,
“Documents may be served through the Court’s transmission facilities by electronic means to the
extent and in the manner authorized by the Standing Order regarding Electronic Case Filing
Policies and Procedures and the ECF User Manual.” The Court’s Standing Order provides
further that “Fed. R. Civ. P. 5(b) and Fed. R. Crim. P. 49(b) do not permit electronic service of
process for purposes of obtaining personal jurisdiction, i.e., Rule 4 service. Therefore, service of
process must be effected in the traditional manner.” In re: Electronic Case Filing Policies and
Procedures, Misc. No. 05-186, at 7 (W.D. Pa. Apr. 20, 2005) (emphasis added). Moreover, the
communications by Third Party Defendants in this case do not touch on the merits of Third Party
Plaintiff’s claim in any way, nor do they involve interaction with the Court regarding Third Party
Third Party Plaintiff also intimates that she did not need to serve Third Party Defendants
because they were already parties to the action. When Third Party Plaintiff filed her Amended
Third Party Complaint, however, Third Party Defendants were serving as counsel for the
Government, but were not parties to the case.
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Plaintiff’s claim against them. Accordingly, the Court does not agree with Third Party Plaintiff’s
contention that she was not obligated to serve Third Party Defendants with summonses and
copies of the Amended Third Party Complaint because they had “waived” their right to service
of process.
As an alternative justification for her failure to serve Third Party Defendants, Third Party
Plaintiff states that it “was the result of the summonses being mailed to the Clerk but not being
received” because she sent them to the Clerk of Court’s former address, rather than to the current
address. (Doc. No. 45, at 2). The Court finds this argument to be disingenuous. First, the Clerk
of Court’s prior mailing address was changed to the current address over five years ago.5
Moreover, even if Third Party Plaintiff did indeed send summonses to the Clerk of Court at the
wrong address, and the Clerk of Court never received them, such error does not relieve Third
Party Plaintiff of the critical obligation to serve Third Party Defendants with summonses and
copies of her pleading. Amazingly, Third Party Plaintiff offers no explanation whatsoever as to
why she did not follow up in some manner with the Clerk of Court regarding the status of the
summonses and why, after taking the step of sending summonses to the Clerk of Court, she made
no further efforts to effect service.
Although they were never served with summonses and copies of the Amended Third
Party Complaint, it is reasonable to assume that Third Party Defendants knew of the existence of
the claim against them contained therein because they represent the Government in this case.
The Court will therefore not assume that Third Party Defendants are prejudiced by not having
had notice of the claim for this lengthy period of time since the pleading was filed. However, the
Court is struck by Third Party Plaintiff’s utter lack of effort in prosecuting her claim, and by the
fact that she never even sought from the Court an enlargement of time in which to effect service
5

The Clerk of Court last used the previous address on or about June 30, 2012.
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once she encountered difficulty with the summonses. Moreover, in her response to the Motion to
Dismiss, Third Party Plaintiff stated that she would “promptly remail her summonses in” since
she had been made aware of the Clerk of Court’s correct address. (Doc. No. 45, at 2).
Nevertheless, according to the docket sheet, Third Party Plaintiff failed to submit valid
summonses to the Clerk of Court until approximately three months later (and almost five months
after Third Party Defendants filed their Motion to Dismiss). As of the date of this Order, Third
Party Plaintiff has still not filed proof of service upon Third Party Defendants Thomas I. Puleo
and KML Law Group, P.C., so the Court has yet to see any evidence to show that they have ever
been served in this case.
Because the Amended Third Party Complaint was filed on November 9, 2015, the 120
days provided by Rule 4(m) expired on or about March 9, 2016. During the two years that have
passed since she filed her Amended Third Party Complaint, Third Party Plaintiff appears to have
expended little to no effort in terms of effectuating service and, even after the Motion to Dismiss
clearly put her on notice that her claim was at risk of being dismissed—and despite her assurance
that she would promptly obtain the necessary summonses—she still failed to take that initial step
of obtaining summonses for an additional three months. Thus, the Court concludes that Third
Party Plaintiff has failed to show good cause for her failure to serve Third Party Defendants in
this case. See, e.g., Sykes v. Blockbuster Video, 205 Fed. Appx. 961, 963 (3d Cir. 2006) (noting
that neither inadvertence of counsel nor a pro se litigant’s unfamiliarity with procedural rules
constituted good cause for failure to comply with the time limit for service of process).
Next, since no good cause has been shown for the delay in service of process, the Court
must determine whether to grant Third Party Plaintiff a discretionary extension of time in which
to serve. Weighing in Third Party Plaintiff’s favor is the fact that she is pro se and should

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therefore be granted a certain amount of leniency in procedural matters. See Law v. Schonbraun
McCann Group, LLC, No. 08-2982, 2009 WL 3380321, at *3 (D.N.J. Oct. 19, 2009). However,
the Court has already been extraordinarily lenient with Third Party Plaintiff in this case. While,
as noted, supra, it is apparent that Third Party Defendants had actual notice of the legal action
which minimizes the chance of prejudice due to delay, such factor must still be weighed against
other considerations, including the fact that Third Party Defendants did not engage in any
nefarious behavior such as attempts to evade service or attempts to conceal any defect in
attempted service, nor was the delay attributable to confusion or delay regarding an in forma
pauperis petition. Moreover, the Court must seriously consider the overarching fact that the
delay at issue here is not minor or insignificant, but is actually quite startling since Third Party
Plaintiff has failed to effect service for over two years. See, e.g., id. (declining to extend a
discretionary extension where a valid summons was over 30 days late).
The Court notes the concern that even a dismissal without prejudice could potentially bar
Third Party Plaintiff’s claim because of statute of limitations issues under the FDCPA.
However, although the running of the statute of limitations may constitute a factor supporting the
discretionary granting of an extension of time to make service under Rule 4(m), it “does not
require the district court to extend time for service of process.” Petrucelli v. Bohringer and
Ratzinger, 46 F.3d 1298, 1306 (3d Cir. 1995). In fact, a district court may “still dismiss the case,
even after considering that the statute of limitations has run and the refiling of an action is
barred.” Id. The Court emphasizes once again that, in this case, Third Party Plaintiff had ample
time in which to serve Third Party Defendants, never asked the Court for an extension of time,
and—even after the Motion to Dismiss was filed—declined to proceed promptly with effecting
service despite stating that she would do so.

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In any event, although the Amended Third Party Complaint noticeably fails to provide a
date when the conduct of Third Party Defendants that allegedly violated the FDCPA occurred,
the statute of limitations likely ran before Third Party Plaintiff actually added that claim. The
FDCPA explicitly provides that actions to enforce liability under the act must be brought “within
one year from the date on which the violation occurs.” 15 U.S.C.A. § 1692k(d). The FDCPA
claim against Third Party Defendants, however, was not raised in this case until more than one
year after the government filed its Complaint to recover Third Party Plaintiff’s student loan debt.
Specifically, the government’s Complaint was filed on May 16, 2014, and Third Party
Defendants’ allegedly faulty “mailing” or “communication” regarding collection of that debt—
which is only vaguely referred to in the Amended Third Party Complaint—logically must have
been sent at some point prior to that date. (Doc. No. 24, at 24; Doc. No. 31, at 28).
Nevertheless, Third Party Plaintiff did not assert her FDCPA claim against Third Party
Defendants Thomas I. Puleo and KML Law Group, P.C. until she filed her Third Party
Complaint on July 20, 2015. 6 (Doc. No. 24, at 24). Therefore, since over a year appears to have
passed between the sending of the communication at issue and the filing of this FDCPA claim,
the statute of limitations likely ran before the claim was ever asserted, in which case preserving
the claim is not a seemingly relevant consideration at this point. Therefore, although the Court
need not rule on this issue in considering the Motion to Dismiss, the statute of limitations
argument clearly does not weigh in Plaintiff’s favor in determining whether to grant a
discretionary extension. See Schonbraun, 2009 WL 3380321, at *3.
Finally, as alluded to, supra, an additional factor to consider in this particular case is that,
even if the Court were to grant a discretionary extension, the Amended Third Party Complaint
Third Party Plaintiff’s Third Party Complaint was supplanted several months later by her
Amended Third Party Complaint.
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does not appear to state a claim against Third Party Defendants upon which relief can be granted.
See Fed. R. Civ. P. 12(b)(6). While the Court need not decide whether to dismiss the claim on
this basis, under Rule 12(b)(6) generally, the factual allegations contained in the complaint must
be accepted as true and must be construed in the light most favorable to the plaintiff, and the
court must “‘determine whether, under any reasonable reading of the complaint, the plaintiff may
be entitled to relief.’” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting
Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)); see Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 563 n.8 (2007). While Federal Rule of Civil Procedure 8(a)(2) requires
only “a short and plain statement of the claim showing that the pleader is entitled to relief,” the
complaint must “‘give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.’” Phillips, 515 F.3d at 231 (quoting Twombly, 550 U.S. at 555 (additional
internal citation omitted)). While “this standard does not require ‘detailed factual allegations,’”
Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Moreover,
the requirement that a court accept as true all factual allegations does not extend to legal
conclusions; thus, a court is “‘not bound to accept as true a legal conclusion couched as a factual
allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555 (internal citation
omitted)).
In the present case, even if a discretionary extension to allow additional time for service
were to be granted, the Court notes that the Amended Third Party Complaint appears not to
allege factual allegations sufficient to support the claim that Third Party Defendants violated the
FDCPA. (Doc. No. 31, at 28). Third Party Plaintiff states in her pleading that the
communication sent to her by Third Party Defendants did not include certain information

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required by the FDCPA, but she appears not to provide sufficient factual allegations—i.e., she
does not appear to plead specific factual content—to show the basis for this accusation.
The FDCPA provides that a debt collector’s communication must include, among other
things:
(4) a statement that if the consumer notifies the debt collector in
writing within the thirty-day period that the debt, or any portion
thereof, is disputed, the debt collector will obtain verification of
the debt . . . and
(5) a statement that, upon the consumer’s written request within
the thirty-day period, the debt collector will provide the consumer
with the name and address of the original creditor, if different from
the current creditor.
15 U.S.C.A. § 1692g(a).
As noted, supra, Third Party Plaintiff alleges that Third Party Defendants violated the
FDCPA, but the only support that she provides for her claim is essentially a recitation of the
statute itself. (Doc. No. 31, at 28). Third Party Plaintiff vaguely contends that Third Party
Defendants sent a “mailing” or “communication” to her relating to a debt, and that such
communication did not indicate that Third Party Defendants were acting as a debt collector or
that Third Party Plaintiff maintained a right to dispute the debt, to request the name and address
of the original creditor, or to obtain verification of the debt. (Doc. No. 31, at 28). Third Party
Plaintiff fails to otherwise provide, however, any description of the “communication” or
“mailing” referenced in her pleading. Most significantly, she does not provide a date when the
allegedly insufficient communication was sent. Such conclusory statements, without any
additional information, provide no factual basis for her claim that Third Party Defendants in fact
violated the FDCPA. Thus, Third Party Plaintiff’s claim appears merely to set forth legal
conclusions as factual allegations. See Iqbal, 556 U.S. at 678. Accordingly, the Court notes that

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Third Party Plaintiff’s appearing to fail to supply the most basic factual allegations in support of
her claim also does not weigh in her favor when considering whether to grant a discretionary
extension.
Thus, after careful consideration of the various factors at issue here, the Court does not
believe that a discretionary extension of the Rule 4(m) time period for service of summonses and
copies of the Amended Third Party Complaint is warranted in this case.
III. Conclusion
Accordingly, Third Party Defendants’ Motion to Dismiss Defendant’s Amended Third
Party Complaint against them is granted. Count VIII of Defendant’s Amended Third Party
Complaint is thus dismissed for insufficient service of process pursuant to Federal Rule of Civil
Procedure 12(b)(5).

s/ Alan N. Bloch
Alan N. Bloch
United States District Judge
cc:

Counsel of Record
Melissa Deuerling
2802 Sebolt Road
South Park, PA 15129

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