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ERIE CPR v. PA Department of Transportation

United States District Court, W.D. Pennsylvania

June 8, 2018

ERIE CPR, et al., Plaintiffs,
v.
PA DEPARTMENT OF TRANSPORTATION, et al., Defendants.

          MEMORANDUM AND ORDER

          CATHY BISSOON UNITED STATES DISTRICT JUDGE.

          I. MEMORANDUM

         In this civil action, Plaintiffs[1] seek an order enjoining the Pennsylvania Public Utilities Commission (“PAPUC”), the PA Department of Transportation (“PennDOT”), the City of Erie, Pennsylvania (the “City”), Erie Mayor Joseph Schember (“Mayor Schember”), and the City Council of Erie (“City Council”) - collectively, the “Defendants” -- from proceeding with the planned demolition of the City's “McBride Viaduct” until such time as Plaintiffs are afforded an opportunity to challenge the demolition decision in an on-the-record public hearing before this Court. Presently pending before the Court is a motion (Doc. 10) by Plaintiffs for a default judgment against PAPUC. For the reasons that follow, Plaintiffs' motion for a default judgment will be DENIED.

         A. Factual and Procedural Background

         Plaintiffs commenced this action on April 30, 2018 with the filing of a three-count complaint alleging violations of their rights under Title VI of the Civil Rights Act of 1964, 42, U.S.C. §§2000d et seq., 49 C.F.R. §§21.1 et seq., and the Fourteenth Amendment's Equal Protection Clause in connection with the Defendants' planned demolition of the McBride Viaduct. (Doc. 1.) The following day, Plaintiffs filed a motion for a preliminary injunction and obtained summons for all of the Defendants. (Docs. 3, 4 and 5.)

         On May 16, 2018, Plaintiffs filed their proof of service. (Doc. 9.) Therein, Plaintiffs' counsel attested that he served copies of the Complaint and summons upon PAPUC and PennDOT via certified mailings addressed to Josh Shapiro, the Pennsylvania Attorney General. (Doc. 9, Doc. 9-1.) The record shows that the packages were separately signed for on May 3, 2018 and May 7, 2018, respectively, by one Mary Dumaresq. (Doc. 9-1 at 5; Doc. 9 at 5.) Plaintiff attempted to serve the City, Mayor Schember, and City Council by sending copies of the Complaint and summons via certified mail addressed to Edward Betza, Esq., the City's solicitor. (Docs. 9-3, 9-2, and 9-4.) Each of these three mailings was received, but not signed for, on May 3, 2018. (Id.)

         To date, no counsel has entered an appearance on behalf of the Defendants and no Defendant has answered or otherwise responded to the Complaint. On June 5, Plaintiff filed the instant motion for default judgment against Defendant PAPUC. (Doc. 10.)

         B. Analysis

         “Before a plaintiff can obtain a default judgment pursuant to Rule 55(b), a plaintiff must secure an entry of default per Rule 55(a).” Allaham v. Naddaf, 635 Fed.Appx. 32, 36 (3d Cir. 2015) (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2682, at 13 (3d ed. 1998)). “Once default is entered against a specific defendant, Rule 55(b) allows the plaintiff to request that the clerk or the court enter a default judgment against that defendant, depending on whether the claim is for a sum certain.” Id.

         When passing upon a motion for default judgment, a court is required to make a threshold determination regarding any jurisdictional defects. Allaham, 635 Fed.Appx. at 36 (citing Bolden v. Se. Pennsylvania Transp. Auth., 953 F.2d 807, 812 (3d Cir.1991)). This includes consideration of whether proper service of the complaint has been effectuated because, in the absence of proper service, the court lacks personal jurisdiction over the defendants named in the complaint. See Omni Capital Int'l. Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987) (“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”); Grand Ent. Group, Ltd. V. Star Media Sales, Inc., 988 F.2d 476, 492 (3d Cir. 1993) (“A district court's power to assert in personam authority over parties defendant is dependent not only on compliance with due process but also on compliance with the technicalities of Rule 4.”); Lampe v. Xouth, Inc., 952 F.2d 697, 701 (3d Cir. 1991) (“A federal district court acquires personal jurisdiction over a defendant when the plaintiff serves the defendant with the complaint in a manner specified by Rule 4 of the Federal Rules of Civil Procedure.”); Dougherty v. Dupes, Civil Action No. 1:17-cv-1541, 2018 WL 1696651, at *4 (W.D. Pa. April 6, 2018) (“A defendant is not properly brought before the court in the matter if it has not been served with process, . . . and the defendant has no duty to defend against the complaint until such time as it properly has been served.”) (citations omitted); see Wright, Miller, et al., & §2682 at 14 (“Before a default can be entered, the court must have subject-matter jurisdiction and jurisdiction over the party against whom the judgment is sought, [] which also means that the party must have been effectively served with process.[ ]”) (footnotes omitted).

         Proper service of original process is governed by Rule 4 of the Federal Rules of Civil Procedure. For purposes of the instant motion, Rule 4(j)(2) supplies the relevant standard. It provides that states, municipal corporations, or other state-created governmental organizations must be served by: “(A) delivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by that state's law . . . .” Fed.R.Civ.P. 4(j)(2). The relevant rule for service under Pennsylvania law is Rule 422 of the Pennsylvania Rules of Civil Procedure, which states that: “Service of original process upon the Commonwealth . . . or a department, board, commission or instrumentality of the Commonwealth, . . . shall be made at the office of the defendant and the office of the attorney general by handing a copy to the person in charge thereof.” Pa. R. Civ. P. 422(a).

         In effectuating service, a plaintiff “may not ‘pick and choose individual provisions from the federal and Pennsylvania rules to manufacture proper service[.]'” Dougherty, 2018 WL 1696651, at *5 (quoting Infantino v. W. Wyoming Borough, No. Civ. A. 3:12-2539, 2013 WL 1345628, at * (M.D. Pa. Apr. 2, 2013)). Rather, the plaintiff “must comply with either the federal procedure or the state procedure” that is incorporated into Rule 4(j)(2)(B). Id. (citing Infantino, 2013 WL 1345628, at *3) (emphasis in the original). Furthermore, regardless which method of service the plaintiff chooses, he or she must strictly comply with the aforementioned rules. Dougherty, 2018 WL 1696651, at *6 (noting that “Pennsylvania law, like federal law, requires strict compliance with its service of process rules”).

         In this case, Plaintiffs have failed to obtain an entry of default, and their request for a default judgment is therefore premature. Beyond this, Plaintiffs have failed to satisfy the service requirements of either Federal Rule of Civil Procedure 4(j)(2)(A) or Pennsylvania Rule 422(a). As a result, the complaint has not been properly served on PAPUC.

         Plaintiffs have failed to satisfy the federal method of service because they did not deliver the complaint and summons to the relevant chief executive officer. Fed.R.Civ.P. 4(j)(2)(A). The Pennsylvania Attorney General is not the chief executive officer of PAPUC and, furthermore, a certified mailing does not constitute “delivery” within the meaning of Rule 4(j)(2)(A). On the contrary, “[d]elivery” for purposes of Rule 4 means personal delivery through use of a process server rather than delivery through the use of certified mail. See White v. Green, 382 Fed.Appx. 199, 202 (3d Cir. 2010) (plaintiff failed to comply with the service requirements of Rule 4(j)(2) when he sent a copy of the complaint, via certified mail, to a county correctional facility that was named as a defendant); Dougherty, 2018 WL 1696651, at *12 (noting that “Rule 4(j)(2)(A) requires service upon a state party by delivering, and not mailing, a copy of the summons and complaint”) (emphasis in the original); Fulton v.Virgin Islands Bureau of Internal Revenue, No. CV 2011-132, 2014 WL 1345421, at *1 (D.V.I. Apr. 4, 2014) (discussing the requirements of Fed.R.Civ.P. 4(j)(2) and noting that “[d]elivery in Rule 4 has a meaning distinct from use of ‘registered or certified mail'” and “requires use of a process server, ...


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