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Jasin v. Kozlowski

July 14, 2010


The opinion of the court was delivered by: Chief Judge Kane


Pending before the Court are multiple orders filed by both Plaintiff and Defendants. This memorandum will address only Plaintiff's motion to strike and motion for judgment on the pleadings. For the reasons that follow, both motions will be denied.


In this instance, the relevant background is a procedural one. Plaintiff Thomas Jasin, acting pro se, filed claims in the Court of Common Pleas of Dauphin County against Defendants Tyco International, Dennis Kozlowski, Mark Swartz, and Juergen Gromer on September 2, 2004. (Doc. No. 1-9.) His complaint raises various state and federal claims arising from Defendants' misrepresentations as to the value of Tyco securities and the financial position of the company. (Doc. No. 1-9.)

On October 1, 2004, Defendants removed the case to federal court. (Doc. No. 1.) The case did not remain pending in this Court for long, however, as it was selected for transfer to the District of New Hampshire for consolidation with other similar cases, also known as multi-district litigation ("MDL"). (Doc. No. 9.) After undergoing discovery, a class action settlement was reached, but Plaintiff Jasin opted out of the settlement agreement. As a result, in 2009, Plaintiff's case was transferred back to this Court for disposition of Plaintiff's individual claims against Defendants. (Doc. No. 13.)

On June 18, 2009, the Court ordered that a telephone conference be held to discuss the status of the case and to set new case management deadlines. (Doc. No. 82.) Upon suggestion of the parties, the Court referred the case to Magistrate Judge Smyser for settlement negotiations, and at one point, stayed the case. (Doc. Nos. 93, 140.) Settlements were reached between Defendants Tyco and Gromer and Plaintiff on December 23, 2009, but not between Defendants Swartz and Kozlowski and Plaintiff. (Doc. No. 142.)

On February 4, 2010, the Court held a telephone conference to set new deadlines and discuss the status of the case. (Doc. No. 147.) At that time, Defendants Kozlowski and Swartz became aware that no answer had been filed on their behalf with respect to this case. On February 11, 2010, and February 15, 2010, Defendants Kozlowski and Swartz, respectively, filed answers to the complaint. (Doc. Nos. 148, 149). Also on February 15, Plaintiff filed a motion for judgment on the pleadings.*fn1 (Doc. No. 150.) Three days later, Plaintiff filed a motion to strike Defendants' answers to the complaint. (Doc. No. 157.) Both of Plaintiff's motions are ripe before the Court for disposition. Also pending are cross motions for summary judgment. (Doc. Nos. 127, 154.)


The gist of Plaintiff's motion for judgment on the pleadings is that he is entitled to judgment as a matter of law because Defendants failed to answer, and thus to deny, the allegations in the complaint. Since Defendants did both file answers to the complaint prior to Plaintiff's motion for judgment on the pleadings, the Court will first take up the question of whether Defendants' answers should be stricken. Thereafter, the Court will consider the merits of Plaintiffs' motion for judgment on the pleadings or for default judgment.

A. Motion to Strike Defendants' Answers

Plaintiff asserts that Defendants' answers should be stricken because: Defendants have failed to comply with an October 5, 2004 Court Order; Plaintiff would be prejudiced by allowing Defendants to assert affirmative defenses at such a late date; and acceptance of the untimely filing would require additional discovery, resulting in judicial inefficiency. Defendants argue that their pleadings should be accepted as timely because service of process was never properly effected, and therefore Rule 12(a)'s time requirement for filing a responsive pleading was never triggered. Defendants also suggest that the consolidated answer filed in the context of the MDL on January 7, 2005, was all that was required of them. Plaintiff's acceptance of the MDL answer as Defendants' responsive pleading for over five years, Defendants argue, negates any objection Plaintiff now makes with respect to the timeliness of that answer.

Federal Rule of Civil Procedure 4(e) allows for service by any means permitted by the "state law . . . in the state where the district court is located." Fed. R. Civ. P. 4(e)(1). In turn, Pennsylvania Rules of Civil Procedure 403 and 404 provide that service may be made on persons outside the Commonwealth by "a form of mail requiring a receipt signed by the defendant or his authorized agent." Pa. R. Civ. P. 403, 404. According to Pennsylvania law, however, a person's attorney in one action does not become an agent authorized to accept service of process in another suit unless permission is expressly granted. UK Lasalle, Inc., v. Lawless, 618 A.2d 447, 501 (Pa. Super. Ct. 1992) ("A lawyer has no authority to accept service of process on behalf of his client in a suit other than that for which he was employed.").

Plaintiff avers that he complied with Pennsylvania Rule of Civil Procedure 403, properly completing service on August 2, 2004. Specifically, he argues that Defendants' criminal attorneys stated that they would act as Defendants' agents for the purpose of accepting service and that they each signed a certified mail slip indicating receipt of the complaint. (Doc. No. 162 at 2, 6.) Yet, Plaintiff has not presented any evidence that Defendants' attorneys had express authority to accept service on Defendants' behalf and Defendants argue that their criminal attorneys were not authorized to receive service of process for this action. Absent information that Defendants had given their criminal attorneys express authority to accept service of Jasin's complaint, the record indicates that Defendants were not properly served.*fn2 Id. (placing burden on the plaintiff to demonstrate that the defendant authorized his former attorney to accept process). If Defendants Swartz and Kozlowski were not properly served, the twenty-day time limit set forth in Rule 12(a) was never triggered. Rule 12(a) only states that a defendant "must serve an answer . . . within twenty days after being served with the summons and complaint." Fed. R. Civ. P. 12(a) (2004) (emphasis added).*fn3

Indeed, it does not appear that Defendants failed to answer the complaint in bad faith or failed to comply with court orders. Plaintiff has not disputed Defendants' characterization that they were a party to the joint answer filed on January 7, 2005, in compliance with Judge Barbadoro's order in the MDL. Neither can Defendants be deemed to have thwarted this Court's orders. This Court's case procedure order directed Defendants to file their answers "as provided for in the Federal Rules of Civil Procedure." (Doc. No. 2.) As explained above, the Federal Rules of Civil Procedure do not require Defendants to answer within twenty days ...

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