Chien v. Grogan et al

Filing 19

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 3/23/17. (klau, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

ANDREW CHIEN,

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Plaintiff,
v.
WILLIAM K. GROGAN, et al.,

Defendants.

M E M O R A N D U M

1:16cv1470(JCC/MSN)

O P I N I O N

This matter is before the Court on United States
Magistrate Judge Nachmanoff’s Report and Recommendations [Dkt.
16], which recommends that the Court dismiss this case for
improper service of process.

This matter is also before the

Court on pro se Plaintiff Andrew Chien’s Motion for
Reconsideration of Dismissal and Permission to Enlarge Time
[Dkt. 17], which this court liberally construes as an objection
to Judge Nachmanoff’s Report and Recommendations.

For the

reasons that follow, the Court will deny Plaintiff’s Motion to
Reconsider, adopt Judge Nachmanoff’s Report and Recommendations,
and dismiss Plaintiff’s Complaint without prejudice.
I. Background
Plaintiff is “a self-employed financial consultant”
who alleges that he was retaliated against after discovering

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that a client of the Defendants “consistently engaged” in
embezzlement.

Compl. [Dkt. 1] at 9, 14.

Plaintiff claims that

Defendants William K. Grogan and William K. Grogan & Associates
(hereinafter “Defendants”) engaged in retaliation by
participating in a conspiracy to damage his “personal property,
business, and living by false arrest and false imprisonment of
[Plaintiff] for 1146 days . . . under the excuse of VA debt
collection.”

Id. at 8.

Plaintiff’s 123-page Complaint also

accuses Defendants of committing multiple criminal offenses.

On

November 28, 2016, Plaintiff filed suit against Defendants,
alleging, inter alia, civil rights violations pursuant to 42
U.S.C. §§ 1981-1983 as well as violations of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§§ 1961-1968.
II. Legal Standard
Pursuant to the Federal Rules, whenever a magistrate
judge enters a recommendation on a dispositive matter, the
district court must review it de novo.
72(b)(3).

Fed. R. Civ. P.

“The district judge may accept, reject, or modify the

recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.”

Id.

III. Analysis
On March 3, 2017, Judge Nachmanoff issued his Report
and Recommendations [Dkt. 16].

The report concludes that
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Plaintiff’s Complaint should be dismissed without prejudice for
improper service of process.

Because the merits of Judge

Nachmanoff’s recommendations, as well as Plaintiff’s objection
to those recommendations, turn on the procedural history of this
case, the Court will now briefly explain that history.
On December 2, 2016, a summons was issued with respect
to each Defendant.

[Dkt. 4.]

On December 8, 2016, Plaintiff

attempted to serve Defendants via a private process server in
Connecticut using priority mail and a tracking number.
6.]

[Dkt.

On January 9, 2017, Plaintiff filed his first Motion for

Default Judgment [Dkt. 7], which was denied as premature by
Judge Nachmanoff for improper service of process [Dkt. 9].

In

his order, Judge Nachmanoff advised Plaintiff “to serve
Defendants within ninety (90) days of the filing of the
Complaint, in accordance with the rules, or face possible
dismissal of the lawsuit.”

[Id.]

Rather than make any effort

to properly serve Defendants, Plaintiff chose instead to file a
second Motion for Default Judgment on February 15, 2017, and ask
for a hearing date of March 3, 2017.

[Dkt. 10.]

Plaintiff also

filed a Memorandum in Support, which states that “both
Defendants received the summons and complaint on December 12,
2016,” and that the “scheduled hearing date of 3/3/17 was 95
days away from the day when the complaint was filed, which was
in compliance with the advice of the Court.”
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Mem. in Supp.

[Dkt. 11] ¶ 1.

As this Memorandum demonstrates, Plaintiff

failed to follow Judge Nachmanoff’s Order [Dkt. 9], which
advised Plaintiff to serve Defendants in accordance with the
Rules.

Now that Plaintiff has failed to properly serve

Defendants, he objects to Judge Nachmanoff’s recommendation that
this Court dismiss his case.

He also seeks an extension of

approximately sixty (60) days to properly serve Defendants under
the Rules.
Pursuant to Rule 12(b)(5), dismissal is appropriate
whenever service of process is insufficient.
12(b)(5).

Fed. R. Civ. P.

Because Plaintiff is suing both an individual and a

law firm, he must follow a different set of rules in order to
serve each.

Moreover, Plaintiff can choose to follow either the

Federal Rules of Civil Procedure or applicable state law.

See

Fed. R. Civ. P. 4.
Under the Federal Rules, an individual may be served
personally, at his or her dwelling or usual place of abode, or
by delivery to an agent authorized or appointed to receive
service of process.

Fed. R. Civ. P. 4(e).

Under Virginia law,

service can also take place by serving an individual personally;
by delivering a copy of the summons and complaint “and giving
information of its purport” to a family member at the
defendant’s residence who is at least sixteen years old, where
the individual is not found at his or her usual place of abode;
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or by posting a copy of the summons and complaint at the front
door of the person’s abode.

Va. Code § 8.01-296.

In contrast, to serve a corporation, partnership, or
association pursuant to the Federal Rules, the plaintiff must
deliver a copy of the summons and complaint to an agent
authorized or appointed to receive service of process and, if
the agent is authorized by statute and the statute so requires,
by also mailing a copy of each to the defendant.
P. 4(h).

Fed. R. Civ.

Under Virginia law, a corporation may also be served

by personal service on any officer, director, or registered
agent.

Va. Code § 8.01-299.

Similarly, an unincorporated

association may be served under Virginia law by personal service
on any officer, trustee, director, staff member, or other agent.
Va. Code § 8.01-305.
In evaluating Plaintiff’s objections today, the Court
is mindful that Plaintiff is proceeding in this matter pro se.
Although Plaintiff’s pro se status might entitle him to “liberal
treatment by courts,” the Court is also cognizant of the fact
that “even pro se litigants are [still] expected to comply with
time requirements and other procedural rules[,] ‘without which
effective judicial administration would be impossible.’”

Dancy

v. Univ. of N. Carolina at Charlotte, No. 3:08-CV-166-RJC-DCK,
2009 WL 2424039, at *2 (W.D.N.C. Aug. 3, 2009) (quoting Ballard
v. Carlson, 882 F .2d 93, 96 (4th Cir. 1989)).
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Here, Plaintiff served both Defendants via priority
mail and a tracking number.

This is not an accepted method for

service under Rule 4 or Virginia law.

Judge Nachmanoff

cautioned Plaintiff prior to the 90-day deadline that this
method of service did not comply with the Rules, yet Plaintiff
made no additional effort to serve Defendants properly.
Moreover, Plaintiff’s Motion for Reconsideration does not
include any information that would allow the Court to conclude
that good cause exists for the failure to execute proper service
of process prior to the deadline.

See Fed. R. Civ. P. 4(m).

Accordingly, the Court agrees with Judge Nachmanoff’s
recommendations.

Federal Rule of Civil Procedure 12(b)(5) makes

clear that dismissal of a case is proper when service of process
is insufficient.

Fed. R. Civ. P. 12(b)(5).
IV. Conclusion

For the above reasons, the Court will deny Plaintiff’s
Motion to Reconsider and for an Extension of Time [Dkt. 17],
adopt Judge Nachmanoff’s Report and Recommendations [Dkt. 16],
and dismiss Plaintiff’s Complaint without prejudice.
An appropriate order will issue.

March 23, 2017
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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