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Cynthia T. Bouchard v. Us Airways

January 5, 2012

CYNTHIA T. BOUCHARD, PLAINTIFF,
v.
US AIRWAYS, DEFENDANT.



The opinion of the court was delivered by: Ambrose, District Judge

OPINION and ORDER OF COURT

Plaintiff Cynthia T. Bouchard ("Bouchard") has filed Title VII claims against Defendant US Airways based upon discrimination she allegedly suffered while employed as a Customer Service Agent and Customer Service Supervisor. She was employed between February of 2002 and January of 2007.

US Airways previously filed a Motion to Dismiss, Or, In the Alternative, For Summary Judgment based upon the deficiency of the summons Bouchard served as well as the deficiency of the service of process itself and Bouchard's alleged failure to exhaust her administrative remedies. See ECF Docket No. [7]. I granted US Airways' Motion based upon the conclusion that the summons Bouchard served upon US Airways did not meet the requirement of the Federal Rules of Civil Procedure. The Complaint was dismissed under FRCP 12(b)(2) for lack of personal jurisdiction based upon the deficiency of the summons. See ECF Docket No. [21]. Dismissal was without prejudice for Bouchard to file a Praceipe to Reissue a Writ of Summons. Bouchard secured a new Writ of Summons on August 1, 2011.

US Airways has renewed its Motion to Dismiss. See ECF Docket No. [27]. It contends that the Complaint must be dismissed pursuant to FRCP 12(b)(2) and 12(b)(5) for deficient service of process and lack of personal jurisdiction; pursuant to FRCP 4(m) for failure to serve the Complaint within 120 days; and pursuant to FRCP 12(b)(6) for failure to exhaust administrative remedies by timely filing her lawsuit following receipt of a Right to Sue notice. After careful consideration, and for the reasons set forth below, the Motion is granted.

ANALYSIS

A. Service of Process

Bouchard served the Complaint upon "Security Officer Moretti" at 150 Hookstown Grade Rd." See ECF Docket No. [26], p. 2. US Airways contests the propriety of this service. Service of process upon a corporation is governed by Federal Rule of Civil Procedure 4(h)(1)(b), which provides that service may be made by*fn1 "delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any agent authorized by appointment or by law to receive service of process. ."

Alternative service is permitted under Rule 4(e)(1), which allows for service "following state law for serving a summons." Service of process upon corporations is governed by Pennsylvania Rule of Civil Procedure 424(1) and (2), which provides that service shall be made by handing a copy to "an executive officer, partner or trustee of the corporation or similar entity" or to "the manager, clerk, or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity," or to "an agent authorized by the corporation or similar entity in writing to receive service of process for it."

Bouchard bears the burden of establishing proper service. See Banaszewski v. Merk and Co., Civ. No. 4-5650, 2005 WL 188203 at * 4 (E.D. Pa. Aug. 9, 2005). Bouchard has not proffered any evidence that "Security Officer Moretti" qualified as an officer, managing or general agent of US Airways within the meaning of FRP 4(h)(1)(b). Nor is there any evidence of record suggesting that US Airways appointed Moretti as an agent designated to accept service on its behalf, or that he was the manager or clerk in charge of the regular place of business at the time of service. There is no evidence indicating that Moretti had actual authority or held himself out has having any authority to accept service, or that he was even employed by US Airways rather than by a private security firm. Simply stated, the Court cannot reasonably infer that a security guard housed at a facility several miles away from the Pittsburgh airport would qualify under FRCP 4(h)(1)(b) or 4(e)(1) to accept service on behalf of US Airways. See Banaszweski, 2005 WL 188203 at * 4 (finding to be deficient service of process where the plaintiff served the complaint upon a security guard and had failed to show that the security guard had either some direct connection to a party who could properly be served or that she affirmatively represented her authority to accept service on behalf of the defendant) and F.P. Woll & Co. v. Valiant Ins. Co., Civ. No. 99-465, 2000 WL 347955 at * 1(E.D. Pa. March 21, 2000) (finding that service of process upon a payroll processor at defendant's place of business did not constitute service under FRCP 4(h)(1) where there was nothing in the record indicating that the payroll processor was an agent for the defendant).

Consequently, the Complaint is dismissed for deficiency of service of service of process and lack of personal jurisdiction.

B. Timeliness of Service

US Airways offers an additional basis for the dismissal of Bouchard's Complaint. Specifically, US Airways challenges the timeliness of Bouchard's service under Federal Rule of Civil Procedure 4(m). Rule 4(m) provides:

If the defendant is not served within 120 days after the complaint is filed, the court -- on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against the defendant or order that service be made within a specified time. But if the plaintiff shows good cause for ...


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