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Ritter v. Virtue

April 7, 2010

ROBERT ALAN RITTER, PLAINTIFF
v.
DANIEL VIRTUE, RONALD HICKS, GREGORY MIRACLE, LUANN DELONG, DEFENDANTS



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

Presently before the court are Defendants' motions to dismiss Plaintiff's complaint pursuant to Rule 12(b)(5) and 12(b)(6) of the Federal Rules of Civil Procedure. From what we can discern from the four corners of the complaint, Plaintiff Robert Ritter alleges, among other things, that the Defendants discriminated against him while he was on disability by interfering with his ability to receive medical treatment for his injuries. He claims violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq, breach of contract and civil conspiracy to deny medical benefits. Consequently, Ritter argues that he is unable to return to work and therefore will lose his contractual seniority. For the reasons that follow, we will grant both motions.

II. Background

Plaintiff is employed as a truck driver by Arkansas Best Freight Systems, Inc. ("ABF") and is a member of Teamsters Local Union No. 776 ("Union"). The ABF and Union are parties to the NMFA, which provides medical and pension benefits to members. The benefits are administered by the Central Pennsylvania Teamsters Health and Welfare Fund ("Fund").

It is unclear when Ritter's injury occurred, but at some point while working for ABF, he suffered an injury to his spine requiring medical treatment. As a result, Ritter applied for and was granted short-term disability through a union disability program. He is presently not working and considers himself totally disabled as a result of the injury. Ritter claims that he tried to receive medical treatment for the injury, but has been unsuccessful because numerous doctors refused to treat the injury properly. The gravamen of Plaintiff's complaint appears to be that the Defendants, conspiring with Ritter's doctors, are punishing him for the amount of income he received while on disability by interfering with his ability to obtain medical treatment and/or minimize the medical treatment he obtains. If he is unable to receive treatment for the injury, Ritter alleges that he will be unable to return to work and consequently will lose seniority. Additionally, plaintiff alleges a breach of the NFMA for failing to provide him the benefits contemplated in the agreement.

At the outset, we note that plaintiff's complaint is written in an unintelligible narrative style and not in compliance with the Federal Rules of Civil Procedure. The civil coversheet attached to plaintiff's complaint indicates that the Plaintiff is pursuing claims for violations of the ADA, breach of contract, and discrimination. Ritter's complaint otherwise makes no mention of the ADA. Subsequently, he sent a letter to the Defendants, informing them that his claim was for a violation of the ADA only. Additionally, Ritter attempted to amend the scope of the complaint in his response to the Defendants' motions to dismiss by adding several allegations.*fn1 Because we are considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), we will only analyze the allegations made in plaintiff's complaint. Thus, we will construe Ritter's complaint as alleging violations of ADA, breach of contract claim and civil conspiracy, and not the additional allegations first raised in his brief in opposition.

Defendants Virtue, Hicks, and Miracle filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(4), 12(b)(5) and 12(b)(6), or alternatively, a motion for a more definite statement pursuant to Fed.R.Civ.P. 12(e). Defendant De Long separately filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), or alternatively a motion for a more definite statement pursuant to Fed.R.Civ.P. 12(e).

III. Discussion

A. Motion to Dismiss Pursuant to 12(b)(5)

As a threshold matter, Defendants Virtue, Hicks and Miracle's raise the issue of sufficient service. Specifically, Defendants argue that service was improper because it was made by the Plaintiff, and under Federal Rule of Civil Procedure 4(c)(2) service may only be made by "a person who is at least 18 years old and not a party." Fed.R.Civ.P. 4(c)(2)(emphasis added). Although courts must construe pro se complaints liberally, Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003)(quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652, 654 (1972)), we do not have jurisdiction over parties that have not been properly served in accordance with Rule 4 of the Federal Rules of Civil Procedure. Adams v. Allied Signal General Aviation Avionics, 74 F.3d 882, 885 (8th Cir. 1996).

This issue is not in dispute. Plaintiff admitted to personally serving the Defendants because he was "instructed by the Office of the Clerk" to deliver the summons and complaint. (doc. 24.) In addition, the proof of service filed by the Plaintiff indicates that he personally served the Defendants. (doc. 8.) Plaintiff was aware that he must abide by the requirements of the Federal Rules of Civil Procedure because, on September 15, 2009, we granted him additional time to serve the complaint "in accordance with the Federal Rules of Civil Procedure." (doc. 9.)

Based on the preceding, we conclude that Defendants Virtue, Hicks and Miracle were not properly served in accordance with the Federal Rules of Civil Procedure. Thus, we will grant their motion and dismiss the claims against them without prejudice. Since we are without jurisdiction over the ...


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