The opinion of the court was delivered by: Judge Conner
Plaintiff commenced this action on December 27, 2010, naming as defendants the Federal Bureau of Prisons ("BOP"), T. R. Sniezek ("Sniezek"), Russell C. Hendershot ("Hendershot"), and Ellen Falzini ("Falzini"). (Doc. 1.) Presently pending is a motion to dismiss and for summary judgment filed on behalf of the BOP. (Doc. 30.) This Memorandum will address the section of the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5) seeking dismissal of the complaint based on insufficient service of process. For the reasons set forth below, this portion of the motion, supported by Section VI.A. of defendant's brief (Doc. 33, at 12-16), will be denied without prejudice and plaintiff's counsel will be afforded until September 4, 2012, to amend his server's affidavit to demonstrate proof of service on the BOP. The remainder of the motion to dismiss and for summary judgment will be held in abeyance. Also addressed herein is the dismissal of defendants Sniezek, Hendershot and Falzini pursuant to Federal Rule of Civil Procedure 4(m).
I. Procedural History Regarding Service of Process
Plaintiff's complaint was filed on December 27, 2010. (Doc. 1.) On May 10, 2011, the Court issued an Order notifying plaintiff and his counsel that the 120-day period for service had expired and that failure to effect service by May 27, 2011, would result in dismissal pursuant to Federal Rule of Civil Procedure 4(m). (Doc. 12.) On May 11, 2011, plaintiff's counsel advised the Court via letter that because plaintiff was proceeding in forma pauperis, he expected service to be completed by the United States Marshal's Service. (Doc. 13.) On May 12, 2011, the Court issued an Order directing the Clerk of Court to prepare and forward summonses to plaintiff's counsel for service on all defendants and that counsel shall effect service forthwith. (Doc. 14.)
On June 6, 2011, plaintiff's counsel filed summonses returned executed by his process server indicating that the summonses for defendants Falzini, Sniezek, Hendershot, and the BOP were given to David Paul at the Federal Correctional Institution at Schuylkill ("FCI-Schuylkill") on June 3, 2011. (Docs. 16-18.)
On July 6, 2011, plaintiff 's counsel was notified by the Assistant United States Attorney ("AUSA") handling the matter of the following: "This letter is to advise you that your attempts at service upon Defendants Sniezek, Hendershot, and Falzini was [sic] defective as none of these individuals are presently employed by the Federal Bureau of Prisons and were not employees at the time your process server dropped off the service packets. Additionally, to date, you have not served either the United States Attorney's Office or the United States Attorney General as required under the Federal Rules of Civil Procedure. Thus, until proper service has been effectuated, none of the Defendants are obligated to respond to the allegations against them." (Doc. 19, at 1-2.)
Plaintiff's counsel represents that upon receiving this correspondence, he immediately arranged for service by an alternative server, Legal Beagle, Inc., also known as American Expediting of Allentown, Pennsylvania. (Doc. 38, at 3.) Counsel contends that he also contacted the offices of Michael Tafelski of the BOP's Northeast Regional Office and was advised that process had to be personally served by a state sheriff. (Id.) The state sheriff declined to serve federal process. (Id.)
The AUSA sent a second letter to plaintiff's counsel on August 30, 2011, advising him that his service was ineffective despite receipt of a certified mail envelope containing a copy of the complaint because no proper return of service had been filed for the individual defendants or the Attorney General. (Doc. 22.)
By Order dated November 14, 2011, the Court again informed plaintiff's counsel that the time for service had passed and that failure to properly serve all defendants by December 5, 2011, would result in the dismissal of the action in accordance with Federal Rule of Civil Procedure 4(m). (Doc. 24.) On November 23, 2011, summonses were reissued.
Plaintiff's counsel arranged for the United States Marshal's Service to personally serve copies of the summonses at FCI-Schuylkill. (Doc. 38, at 4.)
On December 5, 2011, plaintiff's counsel filed copies of letters with attached mailing receipts indicating that he had mailed, via certified mail, a copy of the complaint to the Attorney General of the United States, several offices within the Bureau of Prisons, and to the AUSA. (Doc. 25.) On December 8, 2011, a process receipt and return form was filed indicating that "Susan Melendez, U.S. Attorney Clerk" was served on December 2, 2011. (Doc. 26.) On December 29, 2011, plaintiff's counsel filed a "Certificate of Service" pursuant to the provisions of 28 U.S.C. § 1746, stating that he served "a true, correct and complete copy of the complaint in the above matter together with an original summons on the following by certified return receipt mail, postage prepaid, on November 29, 2011 and that there is attached hereto a true copy of all such letters and the originals of the receipts therefore:" "Civil Process Clerk of the United States Attorney" in Harrisburg, Pennsylvania; Attorney General of the United States, the BOP's Central Office in Washington, D.C., and the Regional Director of the BOP's Northeast Regional Office in Philadelphia, Pennsylvania. (Doc. 28.)
I. Federal Rule of Civil Procedure 12(b)(5) Motion
Federal Rule of Civil Procedure 12(b)(5) permits dismissal of a complaint when a plaintiff fails to effect service of process in a fashion compliant with Rule 4. Since "[t]he failure of a plaintiff to obtain valid process from the court to provide it with personal jurisdiction over the defendant in a civil case is fatal to the plaintiff's case," Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 569 (3d Cir. 1996), it must first be determined whether the complaint was properly served.
Pursuant to Rule 4, a plaintiff must arrange for personal service of a summons and complaint upon each defendant ...