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Pinkney-Price v. PNC Bank

United States District Court, M.D. Pennsylvania

May 22, 2018

CAMELLA PINKNEY-PRICE, Plaintiff,
v.
PNC BANK, et al., Defendants.

          CAPUTO, J.

          REPORT AND RECOMMENDATION

          JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE

         This is 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.

         The 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.[1] (Doc. 24; Doc. 25). The plaintiff has failed to respond to the motion in any fashion whatsoever.

         I. Background

         The 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).

         On May 22, 2017, [2] 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. (Doc. 14).

         On June 5, 2017, [3] 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. (Id.).

         On July 11, 2017, [4] 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.).

         Appearing 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.

         II. Discussion

         A 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).[5] 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).[6] “[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).

         The 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.

         In our May 26, 2017, Order denying her motion for entry of default, we specified the particular reasons why her attempted service of ...


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