Karmue v. Remington et al

Filing 97

REPORT AND RECOMMENDATIONS re 91 MOTION to Dismiss for Lack of Jurisdiction. For the reasons stated within, the district judge should deny defendant Dr. Edward Blanchette's motion to dismiss (Doc. No. 91 ) without prejudice. Any objections to this Report and Recommendation must be filed within fourteen days of receipt of this notice. The fourteen-day period may be extended upon motion. Failure to file specific written objections to the Report and Recommendation within the specified tim e waives the right to appeal the district court's order See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016). Objections to R&R due by 2/13/2019 - So Ordered by Magistrate Judge Andrea K Johnstone on 1/29/2019. (Urizandi, Nisshy)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

Kormahyah Karmue
v.

Case No. 17-cv-107-LM-AKJ

David Remington, Chief Deputy
United States Marshal, et al.

REPORT AND RECOMMENDATION

Before the court is defendant Dr. Edward Blanchette’s
motion to dismiss (Doc. No. 91) plaintiff Kormahyah Karmue’s
second amended complaint (Doc. No. 70) (“SAC”), to the extent
the SAC asserts claims against Dr. Blanchette, on the basis that
the court lacks personal jurisdiction over Dr. Blanchette.
Plaintiff objects.

See Doc. No. 93.

Rule 12(b)(2) Standard
Dr. Blanchette’s motion is filed under Rule 12(b)(2) of the
Federal Rules of Civil Procedure, which provides for dismissal
of an action against a defendant for “lack of personal
jurisdiction.”

Fed. R. Civ. P. 12(b)(2).

When a defendant

contests personal jurisdiction under Rule 12(b)(2), the
plaintiff bears the burden of persuading the court that
jurisdiction exists.

Daynard v. Ness, Motley, Loadholt,

Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir. 2002).

Where, as here, the court considers a Rule 12(b)(2) motion
without holding an evidentiary hearing, the court applies the
“prima facie” standard.

See United States v. Swiss Am. Bank,

Ltd., 274 F.3d 610, 618 (1st Cir. 2001).

Under that standard,

the plaintiff is required to “proffer evidence which, taken at
face value, suffices to show all facts essential to personal
jurisdiction.”

Baskin-Robbins Franch’g LLC v. Alpenrose Dairy,

Inc., 825 F.3d 28, 34 (1st Cir. 2016).

The court takes the

plaintiff’s “properly documented evidentiary proffers as true
and construe[s] them in the light most favorable to
[plaintiff’s] jurisdictional claim.”

A Corp. v. All Am.

Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016).

A plaintiff

may not “‘rely on unsupported allegations in [its] pleadings.’
Rather, [the plaintiff] must put forward ‘evidence of specific
facts’ to demonstrate that jurisdiction exists.”
omitted).

Id. (citations

Facts offered by the defendant “‘become part of the

mix only to the extent that they are uncontradicted.’”

Astro-

Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir.
2009) (citation omitted).

Background
On May 18, 2018, this court issued an Order (Doc. No. 68)
(“May 18 Order”) directing that the SAC be served on certain
individuals, including Dr. Blanchette.

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In the May 18 Order, the

court specifically instructed the clerk’s office “to prepare and
issue” a summons form for Dr. Blanchette using the WDC address,
and then to forward the summons, along with a copy of, inter
alia, the SAC to the United States Marshals Service (“USMS”) to
effect service on Dr. Blanchette pursuant to Federal Rule of
Civil Procedure 4(e).

May 18 Order, at 4-5.

Because the

plaintiff is proceeding in forma pauperis in this matter, the
court directed service pursuant to 28 U.S.C. § 1915(d) and Fed.
R. Civ. P. 4(c)(3).

See May 18 Order, at 4-5.

The clerk’s office issued the summons for Dr. Blanchette,
as directed, on May 23, 2018.

See Doc. No. 71-2.

On August 2,

2018, the return of service (Doc. No. 85) was filed in this
court, indicating that the summons and documents the clerk’s
office issued for service on Dr. Blanchette were served upon
David Tomasso, a WDC employee, at the WDC on July 13, 2018.

The

return indicates that Tomasso “is designated by law to accept
service of process on behalf of” the WDC, but the return does
not indicate that he is designated to accept service on behalf
of Dr. Blanchette.

Doc. No. 85, 2.

The documents were placed

in Dr. Blanchette’s mailbox at the WDC, as Dr. Blanchette was on
vacation on July 13, 2018.

Dr. Blanchette received the

documents when he returned from vacation.
In his motion to dismiss, Dr. Blanchette states that
Tomasso was not authorized to accept service on Dr. Blanchette’s

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behalf.

To the extent Tomasso may have authority to accept

service on behalf of the WDC or its employees, Dr. Blanchette
asserts that such authority did not extend to Dr. Blanchette, as
he is not a WDC employee.

Karmue has not countered those

factual assertions or provided any evidence that Dr. Blanchette
has been properly served with a summons in this case.

Discussion
Although the court cannot exercise personal jurisdiction
over a defendant who is not properly served, see United Elec.,
Radio & Machine Workers of Am. v. 163 Pleasant St. Corp., 960
F.2d 1080, 1085 (1st Cir. 1992), the failure to effect proper
service on Dr. Blanchette is not attributable to Karmue, and
that provides grounds for denying the motion to dismiss here.
Karmue is incarcerated, and he is proceeding in this action in
forma pauperis pursuant to 28 U.S.C. § 1915.

“A plaintiff

proceeding in forma pauperis is entitled to rely upon service by
the [USMS] and should not be penalized for failure of the [USMS]
to properly effect service of process, where such failure is
through no fault of the litigant.”

Rochon v. Dawson, 82 F.2d

1107, 1110 (5th Cir. 1987); see also Robinson v. Clipse, 602
F.3d 605, 608 (4th Cir. 2010) (declining to penalize in forma
pauperis plaintiff for USMS’s delay in effecting service of
process).

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Here, pursuant to § 1915(d) and Rule 4(c)(3), the court
directed the USMS to effect service on Dr. Blanchette, utilizing
the WDC address, but proper service was not effected.

The court

has no reason to believe that Karmue, who is incarcerated in
another state, would have had the ability to obtain any
additional information, such as the hours and dates when Dr.
Blanchette might be available to receive personal service at the
WDC, to enable the USMS to correct the defect in service.

For

these reasons, the court declines to penalize Karmue for the
failure to effect proper service, as “the failure is not
attributable to the plaintiff himself.”
1110.

Rochon, 82 F.2d at

Accordingly, the district judge should deny Dr.

Blanchette’s motion to dismiss (Doc. No. 91), without prejudice
to his ability to file a new motion to dismiss if service upon
him is not properly effected within sixty days of the date of
this R&R, pursuant to the Order that the court is issuing on
this date.

Conclusion
For the foregoing reasons, the district judge should deny
defendant Dr. Edward Blanchette’s motion to dismiss (Doc. No.
91) without prejudice.

Any objections to this Report and

Recommendation must be filed within fourteen days of receipt of
this notice.

See Fed. R. Civ. P. 72(b)(2).

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The fourteen-day

period may be extended upon motion.

Failure to file specific

written objections to the Report and Recommendation within the
specified time waives the right to appeal the district court’s
order.

See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168

(1st Cir. 2016).

__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 29, 2019
cc:

Kormahyah Karmue, pro se
Bethany N. Wong, Esq.
Matthew C. Reeber, Esq.
Patrick J. McBurney, Esq.
Michael G. Sarli, Esq.
Per C. Vaage, Esq.

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