The opinion of the court was delivered by: JOHN E. JONES, District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Pending before the Court is a Motion to Dismiss the Amended
Complaint For Insufficient Service of Process ("the Motion")
(doc. 15) filed by Defendants Stephen Wilcox, Christopher Soo,
Richard Davy, and Kevin Patterson (collectively "Defendants") on
August 1, 2005. For the reasons that follow, the Motion will be
granted in part and denied in part.
FACTUAL BACKGROUND/PROCEDURAL HISTORY:
On July 22, 2004, plaintiff Jervis Lavern Goodrich ("Plaintiff"
or "Goodrich") filed a complaint in the United States District
Court for the Middle District of Pennsylvania against
Pennsylvania State Troopers Stephen Wilcox and Christopher Soo
pursuant to 42 U.S.C. § 1983. (See Rec. Doc. 1). As we explained in our July 13, 2005 Order, Goodrich alleges that on
September 10, 2002, Defendants Wilcox and Soo made an unlawful
investigatory stop of an automobile at 11:19 p.m. Additionally,
Goodrich asserts that due to the illegal stop, his fiancé at the
time, Malissa Kinne, and himself were subjected to an illegal
search and seizure, false arrest, harassment, and illegal
incarceration. Goodrich alleges that he and his fiancé were not
given their Miranda warnings and were subjected to Fourth and
Fifth Amendment violations. On April 1, 2005, Plaintiff filed an
amended complaint in which he added two defendants, Pennsylvania
State Troopers Richard Davy and Kevin Patterson. (See Rec. Doc.
On August 1, 2005, Defendants filed the instant Motion, to
which Plaintiff submitted a brief in opposition on August 29,
2005. The Motion is therefore ripe for disposition.
As Defendants explain in their Motion, after filing his
complaint against Defendants Soo and Wilcox on July 22, 2004, a
summons was issued and provided to Plaintiff for service upon the
aforereferenced Defendants on July 23, 2004. On September 16,
2004, we issued an Order directing Plaintiff to make service upon
Defendants in accordance with the applicable rules. (See Rec.
Doc. 5). As we previously explained, on April 1, 2005, Plaintiff
amended his complaint, adding claims against Defendants Davy and Patterson and a summons was
issued and provided to Plaintiff for service upon Defendants Davy
On April 8, 2005, Plaintiff filed a one-page document with the
Court certifying that he sent a notice to each Defendant stating,
"This is your final notice, you have (10) working day's [sic] to
respond or answer to the summons and complaint that was filed
against you on April 5, 2005." (See Rec. Doc. 13). Defendants
state that documents entitled "Certificate of Service," filed by
Plaintiff, indicate that he mailed a copy of the complaint via
United States Registered Mail to Defendants Soo, Wilcox,
Patterson, and Davy. Defendants have entered a limited appearance
to challenge the improper service of process upon them.
The Federal Rules of Civil Procedure provide methods for
serving process on individuals in a federal action. Federal Rule
of Civil Procedure ("Fed.R.Civ.P.") 4 governs service in federal
court. See Nanyonga v. INS, 200 F.R.D. 503, 505 (M.D. Pa.
2001). Unless an individual defendant waives service under
Fed.R.Civ.P. 4(d)(2), service cannot be made by mail in a federal
action in Pennsylvania. Federal Rule 4(e), provides, in relevant
part, as follows: Service Upon Individuals Within a Judicial District
of the United States. Unless otherwise provided by
federal law, service upon an individual from whom a
waiver has not been obtained and filed, other than an
infant or an incompetent person, may be effected in
any judicial district of the United States:
(1) pursuant to the law of the state in which the
district court is located, or in which service is
effected, for the service of a summons upon the
defendant in an action brought in the courts of
general jurisdiction of the State; or
(2) by delivering a copy of the summons and of the
complaint to the individual personally or by leaving
copies thereof at the individual's dwelling house or
usual place of abode with some person of suitable age
and discretion then residing therein or by delivering
a copy of the summons and of the complaint to an
agent authorized by appointment or by law to receive
service of process.
Fed.R.Civ.P. 4(e). We note that although Fed.R.Civ.P. 4(e)(1)
allows service under the rules of the state where the district
court is located, Pennsylvania does not allow service by mail
upon individuals. See Pa.R.Civ.P. 402.
We therefore find that Plaintiff's service of the complaint and
summons via United States Registered Mail to the named Defendants
does not satisfy the service requirements of Fed.R.Civ.P. 4(e).
Plaintiff did not therefore properly effectuate service of
process in this case. Although we recognize that the 120 day
requirement in which service of the summons and complaint must be
made upon named defendants pursuant to Fed.R.Civ.P. 4(m)*fn1 has
elapsed with respect to both Plaintiff's complaint and amended
complaint, we find excusable neglect, in part upon consideration
of Plaintiff's submission in opposition to the Motion, for
Plaintiff's failure to properly effectuate service of process in
the case sub judice.
We will therefore provide Plaintiff with an additional thirty
(30) days from the date of this Order in which to effectuate
proper service upon all named Defendants pursuant to Fed.R.Civ.P.
4 or to request leave to proceed in forma pauperis under
28 U.S.C. § 1915. If Plaintiff does not effectuate proper service
upon all named Defendants or request leave to proceed in
forma pauperis within thirty (30) days of the date of this
Order, the Court shall dismiss Plaintiff's amended complaint
Accordingly, Defendants' Motion to Dismiss the Amended
Complaint for Insufficient Service of Process is granted in part
and denied in part.
NOW, THEREFORE, IT IS ORDERED THAT:
1. Defendants' Motion to Dismiss the Amended
Complaint For Insufficient Service of Process (doc. 15) is granted
in part and denied in part to the following extent:
A. Defendants' Motion is granted to the extent that
Plaintiff shall effectuate proper service upon all
named Defendants within thirty (30) days of the date
of this Order pursuant to Federal Rule of Civil
Procedure 4, or in the alternative he shall request
leave to proceed in forma pauperis within
thirty (30) days of the date of this Order.
B. If Plaintiff does not effectuate proper service
upon all named Defendants or request leave to proceed
in forma pauperis within thirty (30) days of