Santiago-Ortiz v. Public Broadcasting Service et al

Filing 33

ORDER granting 12 Motion to Quash. The complaint as to PBS is dismissed without prejudice. Signed by Judge Jose A Fuste on 5/9/2013. (mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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LYSSETTE MILAGROS SANTIAGOORTIZ,
Civil No. 12-1964 (JAF)
Plaintiff,
v.
PUBLIC BROADCASTING SERVICE,
et al.,
Defendants.
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ORDER

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On November 28, 2012, Lyssette Milagros Santiago-Ortiz filed a complaint

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against Public Broadcasting Service (“PBS”), the Puerto Rico Corporation for Public

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Broadcasting (“PRCPB”), and their employees and insurer, alleging a hostile work

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environment and wrongful termination and discrimination on account of her age, gender,

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and alleged disability, in violation of both federal and Puerto Rico law. On January 11,

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2013, PRCPB moved to dismiss the summons served on grounds that it was sent through

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certified mail, instead of being personally served. On February 6, 2013, Santiago-Ortiz

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filed a Motion for the issuance of new summons and requested sixty additional days to

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perfect service. (Docket No. 6.) We granted Santiago-Ortiz’s motion and extended the

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time to perfect service until March 28, 2013. (Docket No. 8.) On March 7, 2013, the

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summons we issued against PBS on February 13, 2012, was improperly served on

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March 7, 2013, at the facilities of the PRCPB. On March 27, 2013, PRCPB filed a

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motion to quash summons and dismiss the complaint filed against PBS, asserting

Civil No. 12-1964 (JAF)

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insufficiency of service of process under Rule 12(b)(5). (Docket No. 12.) The motion

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remains unopposed. We quash the summons and dismiss the complaint as to PBS.

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Fed.R.Civ.P. 12(b)(5) provides for dismissal of a complaint due to insufficiency of

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service. A party filing a motion under Rule 12(b)(5) “is essentially contesting the manner

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in which process of service was performed.” Ramirez de Arellano v. Colloides Naturels

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Int'l, 236 F.R.D. 83, 85 (D.P.R.2006); see also Molinelli–Freytes v. Univ. of P.R., 727

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F.Supp.2d 60 (D.P.R.2010). Specifically, “[a] Rule 12(b)(5) motion is the proper vehicle

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for challenging the mode of delivery or the lack of delivery of the summons and

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complaint.” 5B Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND

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PROCEDURE § 1353 (3d ed.2010). The party raising the insufficiency of service bears the

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burden of specifically establishing how plaintiff failed to satisfy the requirements of

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service. Ramirez de Arellano, 236 F.R.D. at 85.

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Generally, if the first service of process is ineffective, and the defects are curable,

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we treat a motion to dismiss as a motion to quash service of process in the alternative,

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and retain the case pending effective service. Ramirez de Arellano, 236 F.R.D. at 85 n. 4.

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However, district courts possess broad discretion to dismiss the action, or retain the case

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and quash the service made on the defendant. Id.

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Here, after multiple opportunities, Santiago-Ortiz failed to fulfill the requirements

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of Fed.R.Civ.P. 4(h)(1)(A)(B) (service is complete by delivering a copy of the summons

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and of the complaint to an officer, a managing or general agent, or any other agent

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authorized by appointment or by law to receive service of process). Rule 4 addresses the

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delivery or the lack of delivery of the summons and the complaint. Id. Insufficient

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service of process includes, among others, service upon an improper person (see Olson v.

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Federal Election Comm’n, 256 F.R.D. 8, 10 (D.D.C. 2009)), or if delivery is either never

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accomplished or not accomplished within 120 days after commencement (see Rzayeva v.

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U.S., 492 F. Supp. 2d 60, 74-75(D.Conn. 2007)). In addition to incorrectly identifying

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PBS as a division of PRCPB in her complaint, Santiago-Ortiz delivered the summons for

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PBS, incorporated under the laws of the District of Columbia, to the office of PRCPB—a

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separate corporate entity, created as an instrumentality of the government of the

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Commonwealth of Puerto Rico. Although PBS supports member stations and affiliates

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with, among other things, marketing promotions and fundraising, PBS is not affiliated

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with the management or personnel decisions of PRCPB. (Docket No. 12 at 3-4.)

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For the foregoing reasons, we hereby GRANT codefendant PRCPB’s motion to
quash summons and we dismiss the complaint as to PBS without prejudice.

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 9th day of May, 2013.

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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE