United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE
a pro se fee-paid civil action. The action commenced
upon filing of the plaintiff's original complaint on
February 1, 2017. (Doc. 1). An amended complaint was filed as
a matter of course on March 21, 2017. (Doc. 7). At this
point, two defendants remain-Preservation Field Services LLC
(“Preservation”) and Safeguard Properties
Management, LLC (“Safeguard”)-all claims against
the other named defendants having been previously dismissed.
remaining defendants, Preservation and Safeguard, have filed
a motion for dismissal of this action for insufficient
service of process, pursuant to Rule 4(m) and Rule 12(b)(5)
of the Federal Rules of Civil Procedure, together with
exhibits and a brief in support. (Doc. 24; Doc. 25). The
plaintiff has failed to respond to the motion in any fashion
pro se plaintiff, Camella Pinkney-Price, filed her
original complaint in this action on February 1, 2017. (Doc.
1). She filed her amended complaint as a matter of course on
March 21, 2017. (Doc. 7).
22, 2017,  Pinkney-Price filed a proof of service
form indicating that she had personally served the summons
and complaint in this matter on defendant Safeguard by
certified mail, return receipt requested. (Doc. 9). When
Safeguard failed to appear and file an answer, Pinkney-Price
filed a Rule 55(a) motion for entry of default against
Safeguard. (Doc. 13). On May 26, 2017, we denied the
plaintiff's motion for entry of default on the ground
that service on Safeguard had been ineffective because: (1)
the return receipt was not signed by the defendant or its
authorized agent; (2) the summons and complaint were mailed
to an incorrect address; and (3) the plaintiff had personally
mailed the summons and complaint to the defendant herself.
5, 2017,  Pinkney-Price filed a return of service
indicating that she had been unsuccessful in attempting to
serve the summons and complaint in this matter on defendant
Preservation by certified mail, return receipt requested.
(Doc. 16). She checked a box on the service form indicating
that she was returning the summons unexecuted and attached a
tracking report stating that the office purportedly
maintained by Preservation at 600 Ridge Road in North
Arlington, New Jersey, had been closed. (Id.). At
the bottom of the proof of service form, Pinkney-Price
commented that she had tried unsuccessfully to obtain an
alternate address for Preservation, but she had concluded
that it was no longer a “legal entity” in New
Jersey, based on a business name search with the New Jersey
Division of Revenue & Enterprise Services.
11, 2017,  Pinkney-Price submitted a cover
letter and a photocopy of a U.S. Postal Service tracking
report and return receipt purportedly documenting service of
the summons and complaint on defendant Safeguard by certified
mail, return receipt requested, but this time addressed and
delivered to Safeguard at its correct mailing address. (Doc.
22). The plaintiff did not submit a proof of service
declaration signed under penalty of perjury, however, and the
return receipt was once again not signed by the defendant or
its authorized agent. (Id.).
through counsel, on October 13, 2017, Preservation and
Safeguard filed a motion for dismissal of this action for
insufficient service of process, pursuant to Rule 4(m) and
Rule 12(b)(5) of the Federal Rules of Civil Procedure,
together with exhibits and a brief in support. (Doc. 24; Doc.
25). On November 3, 2017, the plaintiff having failed to
timely respond to the defendants' motion, we entered an
Order directing the plaintiff to file a brief in opposition
within ten days. (Doc. 27). The plaintiff has failed to
respond to either the defendants' motion or our Order.
defendant may file a motion to dismiss pursuant to Rule
12(b)(5) of the Federal Rules of Civil Procedure when a
plaintiff fails to properly serve it with the summons and
complaint. See Fed. R. Civ. P. 12(b)(5). “The
plaintiff is responsible for having the summons and complaint
served within the time allowed by Rule 4(m) . . . .”
Fed.R.Civ.P. 4(c)(1). Rule 4(m) imposes a 90-day time limit
for perfection of service following the filing of a
complaint. Fed.R.Civ.P. 4(m). If service is not completed
within that time, the action is subject to dismissal without
prejudice. Id.; see also MCI Telecommunications
Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir.
1995). “[T]he party asserting the validity
of service bears the burden of proof on that issue.”
Grand Entm't Grp., Ltd. v. Star Media Sales,
Inc., 988 F.2d 476, 488 (3d Cir. 1993).
fee-paid complaint in this action was filed on February 1,
2017. A summons packet was issued to the pro se
plaintiff on March 27, 2017. Well more than a year later, the
plaintiff has still not properly served the summons and
complaint on defendants Preservation and Safeguard.
May 26, 2017, Order denying her motion for entry of default,
we specified the particular reasons why her attempted service