United States District Court, W.D. North Carolina, Charlotte Division
VINCENT T. FRANKLIN, Plaintiff,
MEGAN J. BRENNAN, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, CHRISTOPHER BROOKS, DAVID JOSEPH, AND TIMOTHY WILLIAMS, Defendants.
MEMORANDUM AND RECOMMENDATION AND ORDER
S. Cayer United States Magistrate Judge.
MATTER is before the Court on “Federal
Defendants' Motion to Dismiss or, in the Alternative, for
Summary Judgment” (Doc. 10 and 11) as well as the
parties' briefs and exhibits.
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.
fully considered the arguments, the record, and the
applicable authority, the undersigned respectfully recommends
that Defendants' Motion to Dismiss be granted as
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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.
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
(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.
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.
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.
DISCUSSION OF CLAIMS
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.
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 ...