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Harris v. Custom Patio Rooms, Inc.

United States District Court, Third Circuit

May 6, 2013

SETH D. HARRIS, ACTING SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Plaintiff,
v.
CUSTOM PATIO ROOMS, INC., Defendant.

MEMORANDUM OPINION

ROBERT C. MITCHELL, Magistrate Judge.

Presently pending before the Court is the motion of Plaintiff, Seth D. Harris, Acting Secretary of Labor, United States Department of Labor, [1] for alternative service of Defendant, Custom Patio Rooms, Inc. ("CPRI"). For the reasons that follow, the motion will be granted.

Plaintiff filed a complaint against CPRI on January 15, 2013, alleging that CPRI was the plan administrator of two employee benefit plans established under the Employee Retirement Income Security Act of 1974 ("ERISA"), but that it breached its fiduciary duties by failing to terminate the plans and distribute the assets to the participants after the employer ceased operations in or about 2009 and terminated the employment of the employees. The Court's federal question jurisdiction is invoked and Plaintiff seeks equitable relief in the form of an order removing CPRI from its position as fiduciary with respect to the plans and appointing an independent fiduciary to administer them in order to effectuate their termination and distribution of plan assets to the participants and beneficiaries. Thereafter, as detailed below, Plaintiff made repeated attempts to effectuate service, but was unsuccessful.

On April 30, 2013, Plaintiff filed a motion for alternative service.

Service of Process

Federal Rule of Civil Procedure 4(h) provides for service upon corporations, and states in pertinent part that corporations may be served:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process[.]

Fed. R. Civ. P. 4(h)(1). Rule 4(e) provides that a defendant may be served by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Fed.R.Civ.P. 4(e)(1). Pennsylvania Rule of Civil Procedure 424 permits corporations to be served by:

handing a copy to any of the following persons provided the person served is not a plaintiff in the action:
(1) an executive officer, partner or trustee of the corporation or similar entity, or
(2) 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
(3) an agent authorized by the corporation or similar entity in writing to receive service of process for it.

Pa. R. Civ. P. 424. Plaintiff brings its motion for alternative service under Pennsylvania Rule of Civil Procedure ...


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