IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
AMANI NGABO
:
v. : Civil Action No. DKC 11-0096
:
LE PAIN QUOTIDIEN
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this
employment discrimination action is a motion to dismiss or to
quash service filed by Defendant Le Pain Quotidien. (ECF No.
9).
1
The issues are fully briefed and the court now rules
pursuant to Local Rule 105.6, no hearing being deemed necessary.
For the reasons that follow, Defendant’s motion will be granted.
I. Background
On October 4, 2010, pro se Plaintiff Amani Ngabo commenced
this action against Defendant Le Pain Quotidien in the Circuit
Court for Montgomery County, Maryland, by filing a complaint
alleging discrimination and retaliation in violation of Title
VII of the Civil Rights Act of 1964. (ECF No. 2). Defendant
owns and operates restaurants worldwide. Since April 2008,
1
Defendant actually asks to the court to dismiss and quash
service. Because the court will quash service without
dismissing, it construes these as alternative requests.
Ngabo v. Le Pain Quotidien Doc. 17
Dockets.Justia.com2
Plaintiff has worked at Defendant’s restaurant in Bethesda,
Maryland, as a dishwasher. (ECF No. 2, ¶ 1).
On December 27, 2010, Plaintiff filed an affidavit of
service stating that he mailed the summons and complaint to
Defendant’s Bethesda restaurant. (ECF No. 9, Attach. 4, at 1).
2
Attached to the affidavit was a copy of a United States Postal
Service tracking report indicating that Plaintiff sent the
documents by certified mail, but did not request restricted
delivery or a return receipt. (Id. at 2). Defendant maintains,
and Plaintiff does not deny, that Plaintiff did not file an
original return receipt.
On January 12, 2011, Defendant timely removed the case to
this court on the basis of federal question jurisdiction. (ECF
No. 1). On January 19, Defendant filed the instant motion to
dismiss or to quash service. (ECF No. 9).
2
Defendant has attached the affidavit of service to its
motion, but this document has not yet been docketed in this
court. Pursuant to Local Rule 103.5(a), the party effecting
removal is required to file, along with its notice of removal,
“true and legible copies of all process, pleadings, documents
and orders which have been served upon that party,” and within
thirty days thereafter, “all other documents then on file in the
state court, together with a certification from counsel that all
filings in the state court action have been filed in the United
States District Court.” Defendant removed this case on January
12, 2011, attaching the complaint, scheduling order, an order
for mandatory settlement conference, and a notice of filing its
notice of removal. (ECF Nos. 2-5). To date, it has not filed
any other state court documents, nor has defense counsel filed
the required certification. 3
II. Standard of Review
Defendant has moved to dismiss for insufficient service of
process under Rule 12(b)(5). The plaintiff bears the burden of
establishing that service of process was valid. See O'Meara v.
Waters, 464 F.Supp.2d 474, 476 (D.Md. 2006). “Generally, when
service of process gives the defendant actual notice of the
pending action, the courts may construe Rule 4 liberally.” Id.
The “plain requirements for the means of effecting service of
process,” however, “may not be ignored.” Id.
III. Analysis
Defendant contends that service of process is insufficient
because Plaintiff (1) did not request restricted delivery, (2)
mailed the summons and complaint to Defendant’s Bethesda
restaurant, rather than to its resident agent, and (3) filed a
defective affidavit of service. Plaintiff responded by sending
a letter to the court that did not address Defendants’
challenges to service of process. (ECF No. 15).
In cases removed to federal court, state law determines
whether service of process was properly effected prior to
removal. See, e.g., Wolfe v. Green, 660 F.Supp.2d 738, 745
(D.W.Va. 2009). The Maryland Rules permit service on
corporations in person, by mail, or, in some circumstances,
through substituted service upon the State Department of
Assessments and Taxation (“SDAT”). See Md. Rule 2-121(a), 2-4
124(d), 2-124(o). Generally, a corporation’s “resident agent,
president, secretary, or treasurer” is authorized to accept
service. Md. Rule 2-124(d). If a corporate defendant “has no
resident agent, or if a good faith attempt to serve the resident
agent, president, secretary, or treasurer has failed, service
may be made by serving the manager, any director, vice
president, assistant secretary, assistant treasurer, or other
person expressly or impliedly authorized to receive service of
process.” Id. Service by mail is effectuated “by mailing to
the person to be served a copy of the summons, complaint, and
all other papers filed with it by certified mail requesting
“Restricted Delivery,” i.e., “show[ing] to whom, date, [and]
address of delivery.” Md. Rule 2-121(a)(3). Alternatively, a
plaintiff may serve a corporation by leaving copies of the
summons and complaint with the SDAT “if (i) the corporation has
no resident agent; (ii) the resident agent is dead or no longer
at the address for service of process maintained with the
[SDAT]; or (iii) two good faith attempts on separate days to
serve the resident agent have failed.” Md. Rule 2-124(o).
In addition, after service of process has been effected,
the plaintiff must “file proof of the service with the court
promptly.” Md. Rule 2-126(a). Filing a proper proof of service
is “prima facie evidence of valid service of process.” State
Highway Admin. v. Kee, 309 Md. 523, 532 (1987). Where service 5
is made by certified mail, “the proof shall include the original
return receipt.” Md. Rule 2-126(a)(3).
Plaintiff purported to serve Defendant by sending the
summons and complaint to Defendant’s Bethesda restaurant by
certified mail, but he did not request restricted delivery as
required by Md. Rule 2-121(a). Plaintiff additionally mailed
the summons and complaint to Defendant’s Bethesda restaurant,
rather than to a person authorized to receive service, such as
Defendant’s resident agent, president, secretary, or treasurer.
See Md. Rule 2-124(o). Furthermore, Plaintiff’s affidavit of
service was deficient because he did not include the original
return receipt. See Md. Rule 2-126(a). Accordingly, Plaintiff
has not properly effected service of process.
Insufficient service of process, however, does not
necessitate dismissal. Where “the first service of process is
ineffective, a motion to dismiss should not be granted, but
rather the Court should treat the motion in the alternative, as
one to quash the service of process and the case should be
retained on the docket pending effective service.” Vorhees v.
Fischer & Krecke, 697 F.2d 574, 576 (4
th
Cir. 1983) (quoting
Bailey v. Boilermakers Local 667 of Int’l Bhd. of Boilermakers,
480 F.Supp. 274, 278 (N.D.W.Va. 1979)). Where there is no
prejudice to the defendant and “there exists a reasonable
prospect that service may yet be obtained,” dismissal is 6
inappropriate and courts have generally allowed the plaintiff
another opportunity to effect service. Umbenhauer v. Woog, 969
F.2d 25, 30 (3
rd
Cir. 1992).
In the interest of justice and recognizing Plaintiff’s pro
se status, the court will provide another opportunity for
Plaintiff to effect service of process on Defendant. See Haines
v. Kerner, 404 U.S. 519, 520 (1972). Where service in state
court is found to be defective, a plaintiff may obtain a summons
in federal court and serve it in accordance with Rule 4 of the
Federal Rules of Civil Procedure. See 28 U.S.C. § 1448; see
also Carden v. Wal-Mart Stores, Inc., 574 F.Supp.2d 582, 587-88
(S.D.W.Va. 2008).
Federal Rule of Civil Procedure 4(l) instructs that the
person effecting service of the summons and complaint must
notify the court, through an affidavit, that he or she has
served the defendant. If Plaintiff does not use a private
process server, and instead uses registered or certified mail to
make service, he must file with the court the United States Post
Office acknowledgement (green card) as proof of service.
Plaintiff must also demonstrate that service was made upon
an appropriate person at an appropriate address. Maryland Rule
2-124(d)-(i) specifically sets forth the requirements for
service upon a corporation or other business association.
Federal Rule of Civil Procedure 4 does not directly provide for 7
service by mail, but it does authorize, in subsections (e) and
(h), service upon a corporation by any means allowed by the
state where the district court is located or the state where
service is to be effected. As noted, Maryland law provides for
service by certified, restricted delivery mail. See Md. Rule 2-
123. Under Maryland law, service is properly made upon a
designated resident agent, or upon certain corporate officers or
general partners. Id.
3
Plaintiff must show the address at which
Defendant was served, why he believes the address was a proper
location to serve, and any basis for believing that the person
who signed for delivery was an appropriate individual to accept
service under Rule 2-124. Plaintiff must also indicate whether
process was served as required by Federal Rule of Civil
Procedure 4(c), that is, whether the summons and the complaint
were served in the package referenced.
Plaintiff shall prepare and return a summons to the Clerk
of Court for issuance. Once the clerk issues the summons, he
shall be permitted sixty days to properly effect service and
file a return of service with the Court to show that service was
effected.
3
Defendant asserts in its motion that its proper name is PQ
Bethesda, Inc. According to the Maryland Department of
Assessments and Taxation, the current resident agent for this
entity is CSC-Lawyers Incorporating Service Co., which is
located at 7 St. Paul Street, Suite 1660, Baltimore, Maryland
21202. 8
IV. Conclusion
For the foregoing reasons, Defendant’s motion will be
granted. A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
