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Eric Manley, et al. v. Navmar Applied Sciences Corp.

January 24, 2013


The opinion of the court was delivered by: Juan R. Sanchez, J.


Pro se Plaintiffs Eric Manley, Skylier Smith, and George Cook(Plaintiffs) filed suitagainst their former employer, Defendant Navmar Applied Sciences Corporation (Navmar), and nine other individual Defendants. On November 14, 2012, this Court granted Navmar's motion to dismiss Plaintiffs' initial Complaint for failure to state a claim and allowed Plaintiffs to file an Amended Complaint.*fn1 Plaintiffs filed three Amended Complaints, only one of which is signed by all Plaintiffs.*fn2 Defendants filed motions to dismiss the Amended Complaints. For the following reasons, the motions will be granted.


In 2011, Navmar hired Plaintiffs to attend a six-week intensive training program in Yuma, Arizona. Upon successful completion of the program, Plaintiffs would be eligible for a 12-month minimum deployment to Afghanistan with premium monetary compensation and full benefits. Plaintiffs were discharged from the program prior to completing training. In their Amended Complaints, Plaintiffs assert claims against Navmar and multiple individual Defendants, including current and former Navmar employees Thomas Fenerty, Mike Kelley, Andrew McWatt, Butch Barr, Richard Salinger, John Matos, Bradley Thompson, Richard Miller and Elliot Gunn. Plaintiffs claim Defendants acted in violation of Navmar's employee handbook, and Plaintiffs were wrongfully terminated for pretextual reasons in violation of anti-discrimination and retaliation laws. Plaintiffs claim they were offered employment with "written assurances" for compensation of $25.00 per hour for one year, a salary of $165,000.00, health coverage, a safe workplace free from discrimination, equal protection under the law, and substantive and procedural fairness.

Plaintiffs assert the following claims against all of the Defendants: (1) negligent supervision, including negligent hiring, negligent training, and negligent retention; (2) breach of contract; and (3) wrongful termination. Among their several requests for relief, Plaintiffs seek $100,000,000.00 in compensatory and punitive damages. Defendants filed separate motions to dismiss the Amended Complaints. Defendants Barr, McWatt, Salinger, Kelley, Matos, Thompson, and Miller filed separate motions to dismiss for insufficient process, insufficient service of process and/or lack of personal jurisdiction. Defendants Navmar and Fenerty filed a motion to dismiss for failure to state a claim upon which relief may be granted.*fn3


The party asserting validity of service bears the burden of demonstrating service was made in conformity with the Federal Rules of Civil Procedure. Grand Entm't Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993). Rule 12(b)(5) allows a party to assert insufficient service of process as a defense based on the plaintiff's failure to comply with Rule 4. Rule 4(c)(1) requires plaintiff to serve defendant with a copy of the summons and Complaint. Fed. R. Civ. P. 4(c)(1). Service may be made in any of the following ways: delivery of a copy of the summons and the Complaint to the individual personally; leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or delivering a copy to an agent authorized by appointment or by law to receive service of process. Fed. R. Civ. P. 4(e)(2)(A)-(C). Unless service is waived, proof of service must be made to the court. Fed. R. Civ. P. 4(l)(1).

The Rule 4 also permits service of a Complaint in any manner authorized by the law of the state where the district court is located or service is made. Fed. R. Civ. P. 4(e)(1). Under Pennsylvania law, original process must be served by handing a copy the summons and Complaint to the defendant, to an adult member of the family with whom defendant resides or who is in charge of the residence, to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which defendant resides, or to an agent or person for the time being in charge thereof at any office or usual place of defendant's business. Pa. R. Civ. P. 402(a)(1), (2).*fn4

Defendants Salinger, Kelley, Thompson, and Miller assert insufficient service of process pursuant to Rule 12(b)(5). They claim they received court documents from a Navmar employee who believed service was intended for each of them. Salinger argues he was not employed by Navmar at the time of service; therefore, the Navmar location was not his normal place of business under Pennsylvania law. Kelley and Miller received documents sent to a Navmar office building at which they have never worked. Thompson is a Navmar employee, but claims he does not have an ownership interest in Navmar, and therefore has no proprietary interest in the company. See Johnson-Lloyd v. Vocational Rehab. Office, 813 F. Supp. 1120, 1125 (E.D. Pa. 1993) ("Service at the defendant's 'office or usual place of business,' however, pertains only to service at a place of business in which the defendant holds a proprietary interest, not at a place where he or she is merely an employee."). This Court agrees that under Federal and Pennsylvania Rules Civil Procedure, Plaintiffs failed to effectuate proper service on Salinger, Kelley, Thompson, and Miller. The Court will grant these Defendants' motions to dismiss for insufficient service of process.

Under Federal Rule of Civil Procedure 12(b)(4), a defendant may raise an insufficient process defense, which challenges the adequacy of the contents of the documents served. See Salaam v. Merlin, No. 08-1248, 2009 WL 2230925, at *2 (D.N.J. July 22, 2009) (citation omitted). Federal Rule of Civil Procedure 4(a)(1) provides:

The summons must: (A) name the court and the parties; (B) be directed to the defendant; (C) state the name and address of the plaintiff's attorney or-if unrepresented-of the plaintiff; (D) state the time within which the defendant must appear and defend; (E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint; (F) be signed by the clerk; and (G) bear the court's seal.

Fed. R. Civ. P. 4(a)(1).

Defendants Barr, McWatt, Salinger, Kelley, Matos, Thompson, and Miller move to dismiss based on Rule 12(b)(4). Defendants argue they were served with a "melange of documents," including a partial copy of the complaint filed in state court and a civil cover sheet, with no summons, no signature of the court, and no court seal. Based on the documents Plaintiffs submitted to the Court purporting to be process, Plaintiffs did not meet their burden of providing sufficient process and the Court will dismiss the Amended Complaints against these Defendants on grounds of insufficient process under Rule 12(b)(4).

A defendant may challenge personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). "Once challenged, the plaintiff bears the burden of establishing personal jurisdiction." O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 316 (3d Cir. 2007). A plaintiff provides sufficient facts to demonstrate personal jurisdiction by "'establishing with reasonable particularity sufficient contacts between the defendant and the forum state.'" Mellon Bank (East) PSFS v. Farino, 960 ...

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