Robinson v. Ergo Solutions, LLC

10 F.Supp.3d 157

Lori Robinson, Plaintiff

v.Ergo Solutions, LLC, Defendant.

Civil Action No. 12–147JDB

United States District Court, District of Columbia.

January 24, 2014

Clifford G. Stewart, Law Office of C. Gregory Stewart, Newark, NJ, Samuel Bailey, Jr., Samuel Bailey & Associates, Washington, DC, for Plaintiff.

Bernard Cecil Coleman, Jr., Law Offices of Bernard C. Coleman, Jr., Oxon Hill, MD, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

Plaintiff Lori Robinson (“Robinson”) brings this action against her employer, Ergo Solutions, LLC (“Ergo”), alleging violations of Title VII of the Civil Rights Act of 1964. Specifically, she alleges that she was sexually harassed and subjected to a hostile work environment because of her gender. Ergo has filed a motion to dismiss for insufficient service of process.

For the reasons explained below, the Court will deny Ergo's motion to dismiss.

BACKGROUND

Robinson filed this action on January 26, 2012, naming Ergo as the only defendant. Her complaint details a pattern of pervasive sexual harassment by Jason Henderson, Ergo's Chief Information Officer and partial owner. Compl. ¶ 7. Henderson also happens to be Ergo's registered agent for service of process. July 23, 2012 Statement of Process Server Mark Hagood (“Hagood Stmt.”) [ECF No. 4].

Just days before Rule 4(m)'s 120–day deadline for service of process, Robinson filed a motion for an extension of time to serve the defendant. Pl.'s First Mot. for Extension [ECF No. 2]. In support of that motion, Robinson included a “report” from the process server whom she had hired, Mark Hagood of J.M. & Associates. Hagood reported multiple attempts to serve Henderson at his listed address, including one in which he saw people inside Henderson's home who refused to answer the door. Pl.'s First Mot. for Extension ¶ 5. Robinson argued that the requested extension was justified because of “avoidance of service by the designated Registered Agent” of Ergo. The Court granted a 60–day extension. See May 24, 2012 Minute Order.

The day before Robinson's new deadline, she filed a motion seeking a second 60–day extension. Pl.'s Second Mot. for Extension [ECF No. 2]. That motion included a letter and a signed affidavit from Hagood, describing five additional attempts to serve process on Henderson, all of which were unsuccessful. Hagood Stmt. Hagood explained that the occupants of the home “would not open the door,” or would “run inside of the residence” when he or his colleagues arrived. Id. The Court granted a second 60–day extension, but cautioned Robison that “[n]o further extensions [would] be granted absent extraordinary circumstances.” July 27, 2012 Minute Order.

On the day of Robinson's final deadline, September 24, 2012, she successfully served a copy of the summons and complaint—but not on Henderson. See Proof of Service [ECF No. 4]. Instead, she served the Corporations Division of the District of Columbia Department of Consumer and Regulatory Affairs (the “DCRA Corporations Division”).Id. The Proof of Service included a signed affidavit from the process server, a date-stamped copy of the summons showing receipt by the DCRA Corporations Division, copies of the prior affidavits demonstrating Henderson's purported avoidance of service, and copies of certified mail receipts demonstrating her attempt to mail a copy of the summons and complaint to Henderson. See id. The certified mail confirmation suggested that Henderson had not actually signed for the documents. See id.

Over six months passed with nary a word from the parties—no answer, no Rule 12 motion, no motion for default. On April 2, 2013 the Court issued an order calling for a status report. Apr. 2, 2013 Minute Order. Robinson filed her status report simultaneously with an affidavit for default. Pl.'s Aff. for Default [ECF No. 5]; Pl.'s Apr. 11, 2013 Status Report [ECF No. 6]. Robinson's affidavit in support of default stated that “ERGO Solutions, LLC” was “personally served with process on September 24, 2012.” Pl.'s Aff. for Default. The affidavit requested that the Clerk of the Court enter a default against Ergo, a request that the Clerk granted the next day. Clerk's Entry of Default [ECF No. 7].

Just over a month later, Robinson filed a motion for default judgment. Pl.'s Mot. for Default J. [ECF No. 8]. Despite the Court's order requiring any such motion to “includ[e] a specification of the damages sought,” May 7, 2013 Minute Order, Robinson asked for $200,000 in compensatory damages and $200,000 in punitive damages without providing any detail or evidentiary support for those requests. As a result, the Court scheduled a hearing on the issue of damages. See Nov. 25, 2013 Minute Order (citing United States v. Bentley, 756 F.Supp.2d 1, 3 (D.D.C.2010) (“Although the default establishes a defendant's liability, the court is required to make an independent determination of the sum to be awarded unless the amount of damages is certain.”)). In the same order, the Court also instructed Ergo to file a witness list if it wished to participate in the damages hearing, and instructed the Clerk of the Court to mail a copy of the Order to the Ergo. Id.

Two weeks after the deadline to file a witness list came and went, and just three days before the damages hearing, Ergo's counsel made an appearance in the case for the first time. Ergo filed a motion to dismiss for insufficient service of process, and accused the “affiant filing the affidavit of service” of “commit[ing] fraud upon the Court.” Def.'s Mot. to Dismiss (“MTD”) [ECF No. 15] at 1; see also Ex. A to MTD, Affidavit of Jason Scott Henderson (“Henderson Aff.”) ¶ 12 (“I have not been served a summons and complaint as the process server acknowledges in the affidavit filed with this Court.”). Robinson responded that service of process was perfected upon serving the DCRA Corporations Division, and characterized Ergo's motion as frivolous and sanctionable. Pl.'s Opp'n [ECF No. 16] at 1. In its reply, Ergo argued that service was improper due to a typographical error in the address listed on the summons. Compare Proof of Service (“22707 Franklin Street”), with Hagood Stmt. (“2207 Franklin Street”). Robinson filed a sur-reply (without seeking leave from the Court), in which she argued that this typo was irrelevant. Pl.'s Sur–Reply [ECF No. 19]. The Court postponed the damages hearing indefinitely, pending the resolution of this motion. See Jan. 9, 2014 Minute Order.

LEGAL STANDARD

“[F]ederal courts lack the power to assert personal jurisdiction over a defendant unless the procedural requirements of effective service of process are satisfied.”Mann v. Castiel, 681 F.3d 368, 372 (D.C.Cir.2012). Federal Civil Rule 4(c) gives the plaintiff the responsibility of “having the summons and complaint served” on the defendant “within the time allowed by Rule 4(m). Rule 12(b)(5), in turn, allows a party to move to dismiss a complaint for “insufficient service of process.” Fed.R.Civ.P. 12(b)(5). “When a defendant moves to dismiss under Rule 12(b)(5), the plaintiff has the burden of establishing the validity of service of process.” Freedom Watch, Inc. v. Org. of Petroleum Exporting Countries, 288 F.R.D. 230, 231 (D.D.C.2013). To carry this burden, the plaintiff “must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law.” Light v. Wolf, 816 F.2d 746, 751 (D.C.Cir.1987). “Proper service of process ‘is not some mindless technicality.’ ” Williams v. GEICO Corp., 792 F.Supp.2d 58, 65 (D.D.C.2011) (quoting Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir.1991). Instead, the requirement of proper service “stems from the Due Process Clause of the Fifth Amendment, which requires that defendants receive adequate notice of proceedings against them.” Id.

DISCUSSION

Ergo makes two arguments in support of its motion. In its initial motion to dismiss, Ergo argued that because personal service was never made on its registered agent, Jason Henderson, service was improper and the complaint should be dismissed. After Robinson pointed out in her opposition brief that her process server had served the DCRA Corporations Division, Ergo turned its focus to a typo in the address listed on the summons, arguing that the typo made service insufficient. Neither argument is persuasive. Because Robinson properly served a copy of the summons and the complaint on the DCRA Corporations Division, the Court will deny Ergo's motion to dismiss.

I. The DCRA Corporations Division may act as agent for service of process for a District of Columbia corporate entity.

Federal Civil Rule 4(h)(1) provides that a corporation may be served with process “in the manner prescribed by Rule 4(e)(1) for serving an individual.” Fed.R.Civ.P. 4(h)(1). That Rule, in turn, directs the plaintiff to “follow[ ] 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). Turning then to the Rules of the District of Columbia Superior Court, service of process on a District of Columbia corporation is effected

by delivering a copy of the summons, complaint and initial order to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.

D.C.Super. Ct. R. Civ. P. 4(h)(2). Hence, the Rules of the D.C. Superior Court look to some other source of law to define the parameters of permissible service upon an “agent authorized ... by law to receive service of process.” Id.; accord Williams v. GEICO Corp., 792 F.Supp.2d 58, 65 (D.D.C.2011) ( “Service on a corporation may be accomplished by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other...