Cichocki v. Mass. Bay Cmty. Coll.

174 F.Supp.3d 572

Timothy E. Cichocki and Y. Dolly Hwang, Plaintiffs,

v.Massachusetts Bay Community College, et al., Defendants.

CIVIL ACTION NO. 15-10663-JGD

United States District Court, D. Massachusetts.

Filed March 29, 2016

Timothy E. Cichocki, Boston, MA, pro se.

Y. Dolly Hwang, Boston, MA, pro se.

Joseph Callanan, Jennifer H. Flynn, Office of the Attorney General, Boston, MA, for Defendants.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS

DEIN, United States Magistrate Judge

I. INTRODUCTION

This action arises out of events that occurred while the plaintiff, Timothy E. Cichocki (“Cichocki”), was working as a Professor of Electrical Engineering at Massachusetts Bay Community College (“MassBay”). Cichocki and his wife, plaintiff Y. Dolly Hwang (“Hwang”), claim that over the course of many years, one of Cichocki's colleagues at MassBay, Helen McFadyen (“McFadyen”), engaged in a campaign of sexual and emotional harassment and manipulation against them. They further claim after Cichocki complained to college officials about McFadyen's improper behavior, MassBay and its administrators engaged in a pattern of unlawful conduct against Cichocki and Hwang. By their nine-count complaint, the plaintiffs, who are proceeding pro se, have brought claims against MassBay; its President, Dr. John O'Donnell (“O'Donnell”); it Chief Personnel Officer, Robin Nelson-Bailey (“Nelson-Bailey”); its Human Resources Director, Valerie Gaines (“Gaines”); and three unnamed officers of MassBay's campus police force (the “John Doe defendants”). Specifically, Cichocki and Hwang have asserted claims for negligence (Counts I and II); employment discrimination and retaliation in violation of Title VII (Counts III and IV); breach of contract (Count V); violations of the Fair Labor Standards Act, the Massachusetts Wage Act and the Access to Medical Report Act of 1988 (Count V); and violations of their constitutional rights pursuant to 42 U.S.C. § 1983 (Counts VI-IX).

The matter is presently before the court on the “Defendants' Motion to Dismiss” (Docket No. 10). By their motion, the defendants are seeking dismissal of all of the plaintiffs' claims, pursuant to Fed. R. Civ. P. 12(b)(5), due to insufficient service of process. They are also seeking dismissal “for the reasons stated in Magistrate [Judge] Collings' January 14, 2013 recommendation[,]” on the plaintiff's motion for a preliminary injunction in a prior litigation that Cichocki filed against MassBay and its administrators. As described below, this court finds that the plaintiffs have failed to complete proper service of process upon any of defendants within the time prescribed by the applicable rules, and that as a result, this court lacks jurisdiction over the present claims. However, in light of the plaintiffs' pro se status, and the lack of any evidence of bad faith on the part of the plaintiffs or prejudice to the defendants if the time for service is extended, this court concludes that Cichocki and Hwang should have an additional opportunity to effectuate service. Accordingly, and for all the reasons detailed herein, the defendants' motion to dismiss is hereby DENIED WITHOUT PREJUDICE. The plaintiffs shall have 30 days from the date of this decision to complete proper service upon each of the identified defendants. In the event the plaintiffs fail to effectuate proper service within the extended time period, the defendants may renew their motion to dismiss on the grounds of insufficient service of process. If, on the other hand, the plaintiffs are able to complete proper service, the defendants may file a new motion to dismiss the complaint on the merits.

II. BACKGROUND

Because this court finds that the plaintiffs' failure to effect proper service of process is dispositive of the motion to dismiss, the following background is limited to facts that are relevant to that issue.

The plaintiffs commenced this action on March 4, 2015 by filing their complaint against the defendants. (Docket No. 1). On July 13, 2015, this court issued an Order notifying the plaintiffs that the action would be dismissed without prejudice, in 21 days from the date of the Order, “unless a proof of service is filed or good cause shown why service has not been made.” (Docket No. 5). Shortly thereafter, on July 20, 2015, the plaintiffs filed a document entitled “Plaintiffs' Filing Proof of Service.” (Docket No. 6). Therein, the plaintiffs purported to establish proof of service upon each of the named defendants, pursuant to Fed. R. Civ. P. 4(m) and Local Rule 4.1(b), by filing: (1) “Plaintiffs' affidavit;” (2) “Server (Tatiana Mazariegos)'s affidavit;” (3) Fedex delivery service requests;” and (4) “Fedex registered IDs for status of service[.]” (Id. at 1-2). Those documents show that on May 27, 2015, Tatiana Mazariegos, an employee at a Federal Express store in Boston, sent Federal Express packages containing copies of a summons and complaint to MassBay, O'Donnell, Nelson-Bailey and Gaines. (Docket No. 6 at 3-10). They further show that the packages were sent to MassBay's address in Wellesley Hills, Massachusetts, and that all of the packages, except the one directed to Gaines, were delivered to that address on or about May 28, 2015. (Id. at 3, 6). There is no indication that Ms. Mazariegos was authorized, either by law or by appointment of a court, to effectuate service of process within the Commonwealth of Massachusetts.

On July 27, 2015, the plaintiffs filed a document entitled “Plaintiffs' Additional Filing of Proof of Service and Request for a New Summons for Defendant Valerie Gaines.” (Docket No. 7). Therein, the plaintiffs submitted documents indicating that each of the Federal Express packages containing copies of a summons and complaint had been delivered to MassBay's Wellesley Hills campus, and had been signed for by an individual identified as “J.

Josslyn,” but that the package directed to Gaines had been returned to Federal Express' headquarters in Memphis, Tennessee. (Id. at 3-9). They further explained that Gaines had recently retired from MassBay, and they requested the issuance of a new summons so they could deliver copies of the summons and complaint to Gaines' home in Framingham, Massachusetts. (Id. at 1). The court subsequently issued a new summons to the plaintiffs for service on Gaines. (Docket No. 8). However, there is nothing in the record to indicate that the plaintiffs made any effort to serve Gaines at her home.

The defendants filed the pending motion to dismiss on July 31, 2015. During a hearing on the motion, this court gave the defendants an additional 30 days to file a Reply Memorandum, and allowed the plaintiffs to file a response within 14 days following the filing of any Reply. (See Docket Entry dated 10/27/2015). Thereafter, the defendants submitted a Reply Memorandum in which they confirmed that they were seeking dismissal of the complaint “for the reasons stated in Magistrate [Judge] Collings' January 14, 2013 recommendation” in the prior litigation, as well as on the grounds of insufficient service of process. (See Docket No. 26). They also asserted that “any claims previously dismissed in the previous case ... for failure to exhaust administrative remedies are now time-barred.” (Docket No. 26 at 1). Thus, they are seeking dismissal both under Fed. R. Civ. P. 12(b)(5) and on the merits of the complaint.

The plaintiffs insist that the prior litigation has no relevance to their current claims, and they have attempted to highlight the differences between that case and the present litigation. (See Docket Nos. 12, 19, 27). In addition, the plaintiffs maintain that the defendants were properly served process in accordance with the Federal Rules of Civil Procedure, and they continue to rely on the delivery of packages by Federal Express to support their assertion that service was completed. (See Docket Nos. 24, 25, and 27 ¶ 3). For the reasons detailed below, this court finds that the plaintiffs' efforts at service were insufficient, and that the court lacks jurisdiction over the merits of the dispute.

III. ANALYSIS

“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirements of service of process must be satisfied.” Aly v. Mohegan Council – Boy Scouts of Am., Civil Action No. 08–40099–FDS, 2009 WL 3299951, at *1 (D.Mass. Apr. 20, 2009). Where, as here, “the sufficiency of process is challenged under Rule 12(b)(5), ... [the] plaintiff bears ‘the burden of proving proper service.’ ” Id. at *2 (quoting Lopez v. Municipality of Dorado, 979 F.2d 885, 887 (1st Cir.1992) ). As detailed above, the record establishes that the plaintiffs attempted to complete service of process on each of the defendants by sending Federal Express packages containing copies of the summons and complaint to MassBay's campus in Wellesley Hills, Massachusetts. Although this court finds that the plaintiffs' method of service was inadequate to satisfy the applicable procedural requirements, this court concludes that the motion to dismiss should be denied without prejudice in order to give the plaintiffs additional time to complete service in accordance with the applicable rules.

Failure to Serve the Individual Defendants

Rule 4 of the Federal Rules of Civil Procedure governs the manner in which service of process can be effected. In particular, Rule 4(e) provides four ways in which a plaintiff may serve process upon individuals, such as O'Donnell, Nelson-Bailey and Gaines, who are located in the United States. First, the plaintiff may complete service 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). Alternatively, the plaintiff may serve an individual defendant by:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling

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