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Franklin v. Brennan

United States District Court, W.D. North Carolina, Charlotte Division

January 14, 2020

VINCENT T. FRANKLIN, Plaintiff,
v.
MEGAN J. BRENNAN, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, CHRISTOPHER BROOKS, DAVID JOSEPH, AND TIMOTHY WILLIAMS, Defendants.

          MEMORANDUM AND RECOMMENDATION AND ORDER

          David S. Cayer United States Magistrate Judge.

         THIS MATTER is before the Court on “Federal Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment” (Doc. 10 and 11[1]) as well as the parties' briefs and exhibits.

         This matter was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1), and this Motion is now ripe for the Court's consideration.

         Having fully considered the arguments, the record, and the applicable authority, the undersigned respectfully recommends that Defendants' Motion to Dismiss be granted as discussed below.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Plaintiff is an African American male employed by the Postal Service. During the relevant period, he was a Tractor Trailer Operator at the Charlotte, North Carolina Vehicle Maintenance Facility. Plaintiff alleges that postal management did not provide him with overtime opportunities and that his night differential time was incorrect. He filed his pro se Complaint against Defendants on May 11, 2018. (Doc. 1). On June 25, 2018, the Court received three “Affidavit[s] of Service” dated June 18, 2018 by a Mecklenburg County Deputy Sheriff. (Doc. 4). In the “Type(s) of Process” section of each Affidavit, only the box for “Summons” was marked. The box for “Complaint” was not marked on any Affidavit. These Affidavits of Service reflect that the Deputy Sheriff served the Summons - but no Complaint - on the individual Defendants Brooks, Joseph and Williams.

         On April 24, 2019, the Court entered an Order directing Plaintiff to show cause as to why this case should not be dismissed for failure to prosecute. (Doc. 5). On May 8, 2019, Plaintiff filed a Motion for Entry of Default. (Doc. 6). On October 9, 2019, the Honorable Robert J. Conrad, Jr. entered an Order (Doc. 8) denying Plaintiff's Motion for Entry of Default and found that

Plaintiff has failed to prove proper service of process on Defendants. Although the summons was returned as executed for Defendants Brooks, Joseph, and Williams, (Doc. No. 4), there is no evidence that Plaintiff properly served a copy of the Complaint on these Defendants as required by Rule 4. In addition, there is no evidence that Plaintiff properly served a copy of either the summons or the Complaint on Defendant Brennan.

(Doc. 8 at p. 2). The Court ordered “Within twenty-one (21) days of this Order, Plaintiff shall file an affidavit or such other required proof of service as to each Defendant. Failure to do so will cause the Court to dismiss the case.” (Id. at p. 3). Affidavit or required proof of service was due by October 30, 2019. Plaintiff did not file anything by that date.

         On November 7, 2019, Defendants filed the instant Motion to Dismiss. On December 2, 2019, Plaintiff filed a document docketed as a Response in Opposition to Federal Defendants' Motion to Dismiss (Doc. 14), an Addendum (Doc. 12) and a Proof of Service (Doc. 13). The Addendum consists of three form Complaints with the following titles: (A) Complaint for Violation of Civil Rights (Non-Prisoner Complaint)(Doc. 12 at 1-7); (B) Complaint for Employment Discrimination (Doc. 12-1 at 1-7); and (C) Complaint for a Civil Case (Doc. 12-2 at 1-7). The Court has not granted leave for the filing of an amended complaint nor has Plaintiff made a motion to amend his Complaint.

         In Document 13, Plaintiff attaches a FedEx Office receipt showing FedEx Standard Overnight delivery to Recipient Address: “US Dept of Justice, U.S. Attorney Office, 227 W. Trade St, Ste 1650 Carillon Blg, Charlotte, NC 28202” for delivery on October 30, 2019. In addition, the receipt shows FedEx 2Day delivery to “Attn: Megan J. Brennan, Postmaster General-USPS, 475 L-Enfant Plaza SW, Washington, DC 20260” for delivery on October 31, 2019. Document 13 also includes two Summons to Megan J. Brennan, one dated May 15, 2018 and one dated October 29, 2019. Neither Summons includes an Affidavit of Service.

         II. DISCUSSION OF CLAIMS

         A civil action is commenced when the plaintiff files a complaint with the court. Fed. R.Civ. P. 3. Federal Rule of Civil Procedure 4 governs service of process and provides that the plaintiff is responsible for having a summons containing a copy of the complaint served on the defendant. Fed.R.Civ.P. 4(c)(1). Rule 4(e) details how to serve an individual within a judicial district of the United States. Rule 4(i) provides that service of a complaint against an agency of the United States is accomplished by: (1) delivering a copy of the summons and a copy of the complaint to the United States Attorney's office for the district where the action is brought; (2) sending a copy of each by registered or certified mail to the Attorney General of the United States; and (3) sending a copy of each by registered or certified mail to the agency. Unless service is waived or served by a United States Marshal or Deputy Marshal, proof of service must be made by affidavit. Fed.R.Civ.P. 4(1)(1).

         “Absent waiver or consent, a failure to obtain proper service on the defendant deprives the court of personal jurisdiction over the defendant.” Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir.1998). Once service has been challenged, plaintiff has the burden to show that he effected service of process properly and that the court has personal jurisdiction over all defendants. See Scott v. Md. State Dep't of Labor, 673 Fed.Appx. 299, 304 (4th Cir. 2016) (per curiam) (unpublished). Since Defendants did not waive or consent to service, Plaintiff must prove that he properly served them. A plaintiff's pro se status is insufficient to establish good cause justifying a failure of service, even where the pro se plaintiff mistakenly believes that service was made properly. Hansan v. Fairfax Cty. School Bd., 405 Fed.Appx. 793, 794 (4th ...


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