United States District Court, M.D. Pennsylvania
December 12, 2005.
MICHELLE LESTER, Plaintiff,
HARRISBURG SCHOOL DISTRICT, Defendant.
The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
On November 16, 2005, we entered an order, pursuant to
Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d Cir. 1992),
directing the Plaintiff, Michelle Lester, to file a brief in
opposition to the motion to dismiss of the Defendant, the
Harrisburg School District. We warned Lester that should she fail
to file an opposition brief, we would deem the Defendant's motion
as unopposed and grant it pursuant to Local Rule 7.6. Instead of
complying Plaintiff now seeks to postpone filing her brief so
that she can obtain an administrative record from the
Pennsylvania Department of Education.*fn1
Lester originally filed her complaint pro se on December 23,
2004. Since she requested in forma pauperis (IFP) status, we reviewed her complaint under
28 U.S.C. § 1915(e)(2)(B)(ii) and granted Lester leave to file an amended
complaint. Nothing was done until February 17, 2005, when
Plaintiff's current counsel entered an appearance. We entered an
order on March 9, 2005, directing Plaintiff to serve process on
Despite this order, the Plaintiff did not serve the Defendant.
On July 15, 2005, we entered an order informing the Plaintiff
that if she did not file and serve her amended complaint, and
file a return of service, by August 4, 2005, the case would be
dismissed without prejudice. The Plaintiff filed a document on
August 4, 2005, which was captioned as her amended complaint yet
it contained no averments or allegations. Plaintiff was informed
of this and on August 8, 2005, she filed a motion for an
extension of time to file her amended complaint stating that
counsel for the Plaintiff had computer problems which resulted in
counsel's inability to retrieve documents. On August 10, 2005, we
granted an extension of time and ordered Lester to file her
amended complaint by August 18, 2005, and file a return of
service by August 19, 2005.
Plaintiff filed her amended complaint on August 18, 2005. Since
this was the filing of an amended complaint, however, a summons
did not issue, as the usual practice of the clerk's office is to
issue a summons with the original complaint.*fn2 Thus, on September 9, 2005, we ordered that a
summons be issued and directed the Plaintiff to serve the
Defendant within ten days of the order and file proof of service
within fifteen days of the order. On September 16, 2005, the
Plaintiff informed us that the summons contained a clerical error
with regard to the amount of time allotted for the Defendant's
answer to the complaint. Pursuant to our order issued September
22, 2005, a new summons was issued and Plaintiff filed proof of
service on October 11, 2005.
On October 17, 2005, the Defendant filed its motion to dismiss
the amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). Plaintiff failed to respond to this motion. On November
7, 2005, the Defendant moved to have its motion granted as
unopposed. This motion triggered our order of November 16, 2005,
in compliance with the Third Circuit's directive in Stackhouse.
As previously noted, the Plaintiff has failed to file a brief
in opposition and instead seeks an extension of time (to obtain
an administrative record). Plaintiff's main argument concerning
her time for compliance is that even though the Defendant filed
its motion through the electronic filing system on October 17, 2005, Defendant's counsel knew that Plaintiff's
counsel would be out of the country until October 24, 2005. Since
Defendant's counsel knew of the unavailability of Plaintiff's
counsel, service of the Defendant's dismissal motion was not
effected until Plaintiff's counsel was able to retrieve the
documents on October 24, 2005. In support of her argument,
Plaintiff relies on Federal Rule of Civil Procedure 5(b)(3).
Rule 5(b)(3) provides that "[s]ervice by electronic means under
Rule 5(b)(2)(D) is not effective if the party making the service
learns that the attempted service did not reach the person to be
served." This rule, however, is in place for situations where
electronic transmission actually fails. see Fed.R.Civ.Pro.
5, Advisory Committee Notes, 2001 Amend.*fn3 That is not
what happened in this case. Additionally, as noted by the
Defendant, Local Rule 5.7 provides that "[t]ransmission of the Notice of Electronic Filing constitutes service of the
filed document upon each party in the case who is registered as a
Filing User." The exhibits provided by Plaintiff's counsel
clearly show that the filing notice was received on October 17,
2005, and that counsel is a registered user of the filing system.
(Doc. 26, Pl. Response, Exs. A & B). Even assuming that Plaintiff
is correct, and service was not effected until October 24, 2005,
her brief would have been due no later than November 14, 2005.
Plaintiff had still failed to responded to the Defendant's motion
to dismiss when we extended time in our November 16, 2005,
Plaintiff also contends that she is entitled to the protections
of the McKinney-Vento Homeless Assistance Act, 42 U.S.C. § 11431,
et seq. However, Plaintiff has not offered any suggestion as
how this Act affords her protection from Defendant's motion to
dismiss. Finally, Plaintiff maintains that a delay in the case is
necessary because the filing of a certified copy of the state
administrative record is required before the Defendant can file
its motion to dismiss. This contention has never been raised
before and no authority for it has been submitted. In any event a
motion to dismiss addresses the complaint on its face. See,
e.g., Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) ("A
12(b)(6) motion tests the sufficiency of the allegations
contained in the complaint."). Having considered the tortured history of this case, and
Plaintiff's failure to comply with prior orders, we will grant
the Defendant's motion to dismiss, in accordance with our
November 16, 2005, order.
We will enter an appropriate order. ORDER
AND NOW, this 12th day of December, 2005, upon consideration of
the record in this case it is Ordered that Defendant's motion to
dismiss is deemed unopposed and is granted, pursuant to Local
The Clerk of Court shall close this file.
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