Vanessa v. Foods

1

VICTOR NAVARRETE VANESSA, Plaintiff, v. WHOLE FOODS, Defendant.

Civil Action No. 22-2393 (ABJ)

United States District Court, District of Columbia

February 2, 2023

MEMORANDUM OPINION AND ORDER

AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE

This matter is before the Court on defendant's Motion to Dismiss [Dkt. # 3] under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). In light of plaintiff's failure to properly effect service on defendant and the relaxed procedural requirements afforded to pro se litigants, the Court will, in its discretion, direct plaintiff to perfect service on defendant within 45 days or risk dismissal of this case. The Court will therefore DENY defendant's motion to dismiss under Rule 12(b)(5) without prejudice to a future motion if service is not completed properly by March 20, 2023, and it will not address the motion to dismiss for failure to state a claim until the service question has been resolved.

BACKGROUND

On July 11, 2022, Plaintiff filed this action in the Superior Court of the District of Columbia. Compl. [Dkt. # 1-3] at 1. On July 13, 2022, two days later, plaintiff personally mailed a copy of her Complaint and Summons to defendant's headquarters in Austin, Texas via the United States Postal Service. See Decl. of Ashley Nugent [Dkt. # 3-4] (“Nugent Decl.”) ¶¶ 4-5. The envelope which Plaintiff mailed containing the documents was addressed to “Whole Foods” and did not name any individual. See Ex. A to Nugent Decl. While defendant states that plaintiff did not serve the complaint via certified mail, plaintiff attached a certified mail receipt to her filings and a return receipt dated July 18, 2022. Ex. 2 to Mot. to Remand [Dkt. # 5]; Def.'s Mot to Dismiss [Dkt. # 3] (“Mot.”) at 6-7.

Defendant filed a notice of removal on August 12, 2022, Notice of Removal [Dkt. # 1], and subsequently filed a Motion to Dismiss on August 19, 2022, under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6), arguing that plaintiff did not effect proper service on defendant and that the complaint fails to state a claim that defendant discriminated against her on the basis of her race, national origin, or age, or a claim for retaliation. Mot. at 1, 5-10.^[1] On September 6 2022, plaintiff filed a Motion to Remand, Mot. to Remand [Dkt. # 5], which was opposed and ultimately denied because plaintiff's consent was not required for removal, and the Notice of Removal set out a basis for federal jurisdiction. Min. Order, Dec. 15, 2022.

STANDARD OF REVIEW

Rule 12(b)(5) governs motions to dismiss for insufficient service of process. Fed.R.Civ.P. 12(b)(5). The plaintiff bears the burden to establish that she has properly effectuated service. See, e.g., Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987). When the defendant challenges the sufficiency of service, 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.” Id. (citations omitted). If plaintiff does not meet that burden, the Court may dismiss the complaint without prejudice for insufficient service of process. See Fed. R. Civ. P. 12(b)(5); Simpkins v. Dist. of Columbia Gov't, 1 08 F.3d 366, at 368-69 (D.C. Cir. 1997). Where an action is brought by a pro se plaintiff, a district court has an obligation “to consider [her] filings as a whole before dismissing a complaint,” Schnitzler v. United States, 761 F.3d 33, 38 (D.C. Cir. 2014), citing Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999), because such complaints are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).

ANALYSIS

In its motion to dismiss, defendant argued that the Court should dismiss the action for insufficient service of process. Mot. at 5-8. Plaintiff did not address this issue in her first filing, the Motion to Remand, but she stated in her “Opposition to Defendant's Reply Brief” that “[t]he service of the complaint is legally binding on Defendant because Defendant operates places of public accommodation utilizing various versions of its name.” Memorandum in Opposition to Def.'s Reply Brief [Dkt. # 10] (“Pl. Brief”) at 3. While this may be true it does not bear on the question of whether plaintiff has effected service in the manner required by the rules of civil procedure.

As an initial matter, the Court must determine which set of procedural rules applies to service of process in this case. Defendant's motion addressed the adequacy of plaintiff's service of process under the Federal Rules of Civil Procedure, but that was not the appropriate approach at the time because plaintiff attempted service before removal of the case. Magowan v. Lowery, 166 F.Supp.3d 39, 65-66 (D.D.C. 2016), citing 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1083 (4th ed. 2015) (“In determining the validity of service in the state court prior to removal, a federal court must apply the law of the state under which the service was made.”). However, “[u]pon removal of the case, the plaintiff had an opportunity to cure the insufficiency of her service of process by properly effecting service under the Federal Rules of Civil Procedure.” Id. at 66, citing 28 U.S.C. § 1448; Wright & Miller, supra, § 1082. Therefore, plaintiff could have effected proper service under either federal or state law. The distinction ultimately has little impact given that the federal rules authorize service in accordance with the applicable state law, so plaintiff could have followed either federal or state law in attempting to cure any deficiencies in her service of process. See Fed. R. Civ. P. 4(h)(1)(A); (e)(1); Alridge v. G4S Secure Sols. USA, Inc., 2019 WL 2931293, at *2 (D.D.C. July 8, 2019).

Service Under the Federal Rules

Under Federal Rule of Civil Procedure 4, “[t]he plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m)”-that is, 90 days after the complaint is filed. Fed.R.Civ.P. 4(c)(1), (m). Any person who is at least 18 years old and not a party to the action may serve a summons and complaint. Fed.R.Civ.P. 4(c)(2) (emphasis added). In other words, a plaintiff cannot personally serve defendants; it must be someone other than herself. A plaintiff must also provide the Court with a proof of service affidavit from the person who served the defendants. Fed.R.Civ.P. 4(1)(1). An affidavit from a plaintiff is invalid as proof of service because, as a party to the action, plaintiff is precluded from serving defendants herself. Fed.R.Civ.P. 4(c)(2).

Rule 4(h) instructs a plaintiff on how to serve a “corporation, partnership, or association.” It provides that:

Unless federal law provides otherwise or the defendant's waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint 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 and the statute so requires - by also mailing a copy of each to the defendant; or

(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

Fed. R. Civ. P. 4(h).

Plaintiff's efforts fell short of a number of federal Rule 4's requirements. First, plaintiff failed to satisfy Rule 4(c)(2)'s requirement that a party cannot personally serve defendants. See Ex. A to Nugent Decl. Also, plaintiff did not provide the Court with a proof of service affidavit from the person who served the defendants as required by Rule 4(1)(1). Beyond the general requirements of Rule 4, plaintiff also failed to meet the requirements for properly serving a corporation under Rule 4(h), which she could have satisfied either in accordance with Rule 4(h)(1)(A), that is, “in the manner prescribed by Rule 4(e)(1) for serving an individual,” or under the terms of Rule 4(h)(1)(B), “by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized to receive service of process.”

With respect to the first option, plaintiff did not comply with the requirements of Rule 4(h)(1)(A) because she did not serve defendant in the manner prescribed by Rule 4(e)(1) for serving an individual. Rule 4(e)(1) permits 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). Plaintiff could have followed the state law for serving a summons under the laws of the District of Columbia, where this Court is located, or Texas, where service was made, but as will be discussed in more detail below, she did not comply with those requirements.

As for the second option, Rule 4(h)(1)(B), plaintiff failed to direct the summons and complaint to a specific individual as required, and she did not deliver these copies because the delivery requirement “refers to personal service, not service by mail.” Canuto v. Mattis, 273 F.Supp.3d 127, 134 (D.D.C. 2017) (citation omitted).

Service Under D.C. Rules

D.C law mirrors the federal rules and provides that a plaintiff can serve a corporation in one of two ways: (A) in the same manner as an individual as set forth in the District's version of Rule 4(e)(1); or (B) by delivering a copy of the summons...