Filed: Dec. 20, 2016
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1617 MR. ADRIAN R. SCOTT, Plaintiff - Appellant, v. MARYLAND STATE DEPARTMENT OF LABOR, LICENSING & REGULATION; JENNIFER DASHIELL REED, Director of the Office of Fair Practices; ALICE L. WIRTH, Deputy Assistant Secretary Office of Educational & Workforce Skills Training for Correctional Institutions; JAMES YOUNGER, III, Principal Maryland Correctional Institute; EDWARD W. SCHWABELAND, Principal Maryland Correctional Institu
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1617 MR. ADRIAN R. SCOTT, Plaintiff - Appellant, v. MARYLAND STATE DEPARTMENT OF LABOR, LICENSING & REGULATION; JENNIFER DASHIELL REED, Director of the Office of Fair Practices; ALICE L. WIRTH, Deputy Assistant Secretary Office of Educational & Workforce Skills Training for Correctional Institutions; JAMES YOUNGER, III, Principal Maryland Correctional Institute; EDWARD W. SCHWABELAND, Principal Maryland Correctional Institut..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1617
MR. ADRIAN R. SCOTT,
Plaintiff - Appellant,
v.
MARYLAND STATE DEPARTMENT OF LABOR, LICENSING & REGULATION;
JENNIFER DASHIELL REED, Director of the Office of Fair
Practices; ALICE L. WIRTH, Deputy Assistant Secretary Office
of Educational & Workforce Skills Training for Correctional
Institutions; JAMES YOUNGER, III, Principal Maryland
Correctional Institute; EDWARD W. SCHWABELAND, Principal
Maryland Correctional Institute; RANDOLPH J. SHIPE,
Principal Maryland Correctional Institute; LEANN LORENZ,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:14-cv-02432-JFM)
Argued: September 20, 2016 Decided: December 20, 2016
Before NIEMEYER and DIAZ, Circuit Judges, and Irene M. KEELEY,
United States District Judge for the Northern District of West
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: JoAnna M. Esty, MAJESTY LAW GROUP, Middle River,
Maryland, for Appellant. M. Willis Gunther, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees. ON BRIEF: Brian E. Frosh, Attorney General of
Maryland, Christopher Bowie Lord, Assistant Attorney General,
Department of Labor, Licensing, and Regulation, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Adrian R. Scott appeals the district court’s dismissal of
his employment discrimination suit against the Maryland State
Department of Labor, Licensing & Regulation (“DLLR”) and six
DLLR employees for violations of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the
Age Discrimination in Employment Act of 1967 (the “ADEA”), 29
U.S.C. § 621 et seq. Finding that the district court did not
abuse its discretion by dismissing the claims against DLLR under
Fed. R. Civ. P. 12(b)(5), and that the six DLLR employees are
not subject to suit in their individual capacities, we affirm
the judgment.
I.
This case is before us on a motion to dismiss, so we accept
the factual allegations of Scott’s complaint as true. See
De’Lonta v. Johnson, 708 F.3d 520, 524 (4th Cir. 2013). Anne
Arundel Community College (“AACC”) contracted with DLLR on a
yearly basis to provide academic, occupational, and library
instruction at various Maryland correctional institutions. AACC
bore the primary responsibility for recruiting and hiring
instructors, but DLLR also interviewed and approved candidates.
Beginning in March 2009, AACC employed Scott as an instructor
for the Employment Readiness Workshop at Maryland Correctional
3
Institution – Jessup (“MCI-J”). His contract was renewed every
year until 2012.
Although Scott’s experience as a contract employee was
initially satisfactory, it took a decidedly unpleasant turn in
the spring of 2012. During that time, Scott allegedly suffered
sexual and workplace harassment, as a consequence of which he
filed at least three administrative complaints with DLLR. This
action resulted in further harassment and retaliatory behavior
from his immediate supervisor, the MCI-J school principal, and
eventually the replacement principal. Finally, in July 2012, at
DLLR’s direction, AACC refused to renew Scott’s contract. After
that, DLLR advised Scott that, in order to return to work, he
would be required to drop all his complaints and agree not to
file any others. On October 12, 2012, Scott signed an agreement
that allowed him to return to work at a different DLLR facility,
Metropolitan Training Center (“MTC”), located in Baltimore. The
harassment and retaliation resumed while Scott was at MTC,
however, and, on October 22, 2012, DLLR again terminated his
employment.
In September 2012, while between jobs at MCI-J and MTC,
Scott filed a charge with the Equal Opportunity Employment
Commission (“EEOC”) alleging that DLLR and its agents had
subjected him to discrimination, harassment, and retaliation in
violation of Title VII and the ADEA. The EEOC dismissed the
4
matter because it was “unable to conclude that the information
obtained establishe[d] violations of the statutes.” J.A. 54. It
then issued a Notice of Suit Rights on April 30, 2014, informing
Scott that his EEOC charge had been dismissed and that he had a
right to file suit within 90 days of receiving the notice. On
July 30, 2014, Scott filed a pro se complaint charging
employment discrimination and naming as defendants DLLR and six
DLLR employees.
In his complaint, Scott alleged violations of Title VII and
the ADEA. More particularly, he alleged that the defendants
wrongfully failed to hire him, terminated his employment, and
failed to promote him, all on the basis of his race, color, sex,
and age. At the time he filed his complaint, Scott chose not to
have any summonses issued. Instead, he sent a copy of the
complaint to each defendant by certified mail to a satellite
DLLR office located in Baltimore. The administrative office of
DLLR is located elsewhere, however; neither the DLLR secretary
nor any registered agent is located at the address used by
Scott. Apparently, a mail room employee at the DLLR satellite
office signed for the complaints on August 4, 2014, while at the
Post Office picking up the building’s mail.
On October 30, 2014, the district court granted Scott’s
request for leave to proceed in forma pauperis and provided him
with specific instructions about how to properly effect service
5
on the defendants through the United States Marshals Service
(“USMS”). In its Order, the district court directed the Clerk to
mail Scott a USMS service form for each defendant, and also
directed Scott to complete the form and return it, together with
a copy of the complaint for each named defendant, within 21
days.
At the end of its Order, the district court directed the
Clerk to deliver only one copy of the USMS form. According to
Scott, the Clerk only sent him one form, which he addressed to
DLLR and returned to the Clerk’s office on November 20, 2014,
the last day to do so. Scott asked the Clerk’s office what he
should do in order to serve the other defendants, and was
advised that the Clerk would mail the appropriate forms to him.
The Clerk then issued the summons to DLLR on November 21, 2014.
The USMS mailed the summons and complaint for DLLR to the
address provided by Scott, by certified mail, return receipt,
and restricted delivery. Despite the district court’s careful
instructions to him about how to obtain an address sufficient
for serving DLLR’s resident agent, Scott directed service to
“Maryland State Department of Labor Licensing Regulation” and
listed the same DLLR satellite office address to which he had
initially mailed the complaints.
On December 1, 2014, a mail room employee at the satellite
office accepted service of the summons directed to DLLR.
6
According to this employee’s affidavit, he later gave the
envelope to the Unemployment Insurance Board of Appeals, from
where it eventually wound its way to the Office of Fair
Practices on or about December 3, 2014. Counsel then noted an
appearance on behalf of all the defendants on December 11, 2014.
In mid-December, Scott again went in person to the Clerk’s
office to pick up the additional USMS forms he had not received
by mail.
On January 22, 2015, the defendants moved to dismiss the
complaint. On February 2, 2015, the Clerk received additional
USMS forms and service copies of the complaint from Scott.
Although the USMS form for DLLR listed its secretary, Scott
inexplicably directed that service be made at the Baltimore
satellite office. The individual defendants’ forms directed that
service be made at various addresses, including several
correctional facilities, and also at the Baltimore DLLR
satellite office. Ultimately, the summonses were sent by
certified mail, return receipt and restricted delivery, and were
executed either on March 9 or 10, 2015.
On March 10, 2015, Scott’s attorney noted her appearance,
and, on March 12, 2015, the parties consented to a second 30-day
extension of time for Scott to respond to the motion to dismiss,
which he finally did on April 10, 2015. That response addressed
the substantive issues raised in the motion to dismiss, and also
7
included brief requests for an extension of time in which to
cure service, if necessary, and also for leave to file an
amended complaint should the Court find the first complaint
defective. Aside from those embedded requests, Scott never moved
for an extension of the time in which to serve the defendants,
see Fed. R. Civ. P. 6(b), nor did he separately move for leave
to file an amended complaint pursuant to Rule 15(a)(2) and the
Local Rules of the District of Maryland.
The district court dismissed the complaint on May 7, 2015, 1
finding that Scott had not properly effected service on DLLR,
had not served the individual defendants within the 120-day
service period, and had failed to show good cause to extend the
service period. It also determined as a matter of law that the
defendants were immune from suit in federal court. It concluded
that the six individual DLLR employees are not proper defendants
under Title VII or the ADEA, that DLLR was not Scott’s employer
under Title VII, and that DLLR was not subject to suit under the
ADEA.
1
Because the district court did not state whether the
dismissal was with prejudice, pursuant to Fed. R. Civ. P. 41(b),
“a[n] [involuntary] dismissal . . . operates as an adjudication
on the merits.”
8
II.
We review a district court’s decision for abuse of
discretion where, as here, it dismisses a claim for improper
service of process under Rule 12(b)(5). Shao v. Link Cargo
(Taiwan) Ltd., 986 F.2d 700, 708 (4th Cir. 1993). A district
court abuses its discretion by failing to exercise any
discretion, failing to apply the proper standard, or by using
“erroneous factual or legal premises.” James v. Jacobson,
6 F.3d
233, 239 (4th Cir. 1993). We review de novo a dismissal under
Rule 12(b)(6). Wag More Dogs, Ltd. Liab. Corp. v. Cozart,
680
F.3d 359, 364 (4th Cir. 2012). The plaintiff bears the burden of
proving adequate service once a motion to dismiss for
insufficient service of process has been filed pursuant to Fed.
R. Civ. P. 12(b)(5). See Dickerson v. Napolitano,
604 F.3d 732,
752 (2d Cir. 2010).
III.
At the time of the events in this case, a plaintiff was
required to serve a summons and complaint on each defendant
within 120 days of filing suit. Fed. R. Civ. P. 4(c), (m) (2014)
(amended 2015). However, as we held in Robinson v. Clipse, the
service period of Fed. R. Civ. P. 4(m) is tolled while the
district court considers an in forma pauperis complaint. 602
F.3d 605, 608 (4th Cir. 2010) (“[A]n in forma pauperis plaintiff
9
should not be penalized for a delay caused by the court’s
consideration of his complaint.”). If a plaintiff fails to
effect service within the time required, the district court must
dismiss the action “or order that service be made within a
specified time.” Fed. R. Civ. P. 4(m) (emphasis added).
When a plaintiff is proceeding in forma pauperis, the
district court must order the USMS to effect service. Fed. R.
Civ. P. 4(c)(3). In the District of Maryland, service upon a
state-created governmental organization may be effected by
serving its chief executive officer, its designated resident
agent, or the Maryland Attorney General. Fed. R. Civ. P. 4(j);
Md. Rule 2-124(k). “[T]he real purpose of service of process is
to give notice to the defendant,” Karlsson v. Rabinowitz, 318
F.2d 666, 669 (4th Cir. 1963), and “‘mere technicalities’ should
not stand in the way of consideration of a case on its merits.”
Torres v. Oakland Scavenger Co.,
487 U.S. 312, 316-17 (1988).
“[A]ctual notice,” however, is not the controlling
standard. See Mining Energy, Inc. v. Dir., Office of Workers’
Comp. Programs, 391 F.3d 571, 576 (4th Cir. 2004). Although
actual notice typically warrants liberal construction of the
rules, they “are there to be followed, and plain requirements .
. . may not be ignored.” Armco, Inc. v. Penrod-Stauffer Bldg.
Sys., Inc.,
733 F.2d 1087, 1089 (4th Cir. 1984).
10
A.
We first address the timeliness and sufficiency of service
on DLLR. Although Scott filed his complaint and motion to
proceed in forma pauperis on July 30, 2014, the district court
did not rule on his motion until October 30, 2014. Therefore,
the 120-day period within which Scott was required to serve the
defendants did not run until February 27, 2015. See Robinson,
602 F.3d at 608.
When the district court granted Scott’s motion to proceed
in forma pauperis, it ordered him to return the proper forms and
service copies of the complaint so that the USMS could effect
service on his behalf. Unfortunately, despite the need to serve
seven defendants, Scott returned only one USMS form to the Clerk
by November 20, 2014. That form directed service on “Maryland
State Department of Labor Licensing Regulation,” rather than its
secretary or resident agent as required by the rules. Fed. R.
Civ. P. 4(j); Md. Rule 2-124(k). Scott also failed to follow the
district court’s instruction to identify the proper address for
service. Once again, he listed the same Baltimore satellite
office to which he had sent copies of the complaint three months
before. Nevertheless, service of this complaint and summons to
DLLR was accepted at the address Scott provided on December 1,
2014.
11
After the defendants moved to dismiss his complaint on
January 22, 2015, Scott returned additional copies of the
complaint and USMS forms to the Clerk on February 2, 2015.
Although he listed the secretary of DLLR on the USMS forms,
Scott again directed service on DLLR at the Baltimore satellite
office. This second attempt at service was delayed, through no
fault of Scott, until after the expiration of the 120-day
period. The Clerk inexplicably delayed issuing the summonses
until February 26, 2015, and, as a consequence, the second
summons to DLLR was not executed until March 9, 2015. 2
We have previously recognized that in forma pauperis
plaintiffs “must rely on the district court and the [USMS] to
effect service,” and should not be penalized for delay in
service beyond their control. See Robinson, 602 F.3d at 608-09
(citing Graham v. Satkoski,
51 F.3d 710, 713 (7th Cir. 1995)
(“The prisoner may rely on the Marshals Service to serve
process, and the Marshals Service's failure to complete service
is automatically ‘good cause’ to extend time for service under
Rule 4(m).”)); see also Wright v. First Student, Inc.,
710 F.3d
782, 783-84 (8th Cir. 2013) (“[I]f the delay in service was the
2 Although the district court’s docket reflects that a
summons was returned as having been executed on DLLR, the
returned executed summons itself is absent from the record. For
the purpose of this analysis, we assume that the summons was, in
fact, served at the address Scott provided on the USMS form.
12
result of a delay by court staff or the USMS in fulfilling their
obligations, [the plaintiff’s] complaint should not have been
dismissed under Rule 4(m).”). Here, the March 9, 2015, service
of process occurred after the 120-day period expired on February
27, 2015. Because that delay was outside of Scott’s control, and
solely attributable to the Clerk and the USMS, pursuant to
Robinson we find good cause for the delay and conclude that
Scott’s attempt at service was timely.
Nevertheless, both of Scott’s timely attempts to serve DLLR
were insufficient despite the fact that DLLR received actual
notice of the suit. Actual notice does not equate to sufficient
service of process, even under the liberal construction of the
rules applicable to a pro se plaintiff. See, e.g., Crowley v.
Bannister, 734 F.3d 967, 975 (9th Cir. 2013) (“Neither actual
notice, nor simply naming the person in the caption of the
complaint, will subject defendants to personal jurisdiction if
service was not made in substantial compliance with Rule 4.”);
Precision Etchings & Findings, Inc. v. LGP Gem, Ltd.,
953 F.2d
21, 24 (1st Cir. 1992) (“Although ‘minor’ formal defects are
excusable provided actual notice has been accomplished, . . .
the rule nevertheless must be accorded at least substantial
compliance.”).
The requirements for serving a state-created government
agency are clear, and we note that the district court rendered
13
Scott additional assistance by providing a website and a
telephone number where he could obtain the proper name and
address for serving DLLR’s resident agent. Despite his
obligation to do so, Scott failed to direct service to the
proper address both in November 2014 and also in February 2015;
instead, he directed that service be made at a satellite DLLR
office. See Lee v. Armontrout, 991 F.2d 487 (8th Cir. 1993)
(“[I]t [is the plaintiff’s] responsibility to provide proper
addresses for service . . . .”). We find this error to be more
than a “mere technicalit[y],” and that actual notice is
incapable of curing such a substantial defect in service. See
Torres, 487 U.S. at 316-17. To hold otherwise would eviscerate
the clear requirements of Rule 4. See Armco,
Inc., 733 F.2d at
1089.
B.
Scott argues that he has shown good cause for his failure
to properly serve DLLR, and the district court should have
granted his request to extend the time to effect proper service.
We disagree.
Rule 4(m) requires extension of the 120-day service period
only when the plaintiff can show good cause for his failure to
serve. Fed. R. Civ. P. 4(m); Mendez v. Elliot, 45 F.3d 75, 78
(4th Cir. 1995); see also Nafziger v. McDermott Intern., Inc.,
467 F.3d 514 (6th Cir. 2006) (“Establishing good cause is the
14
responsibility of the party opposing the motion to dismiss . . .
and ‘necessitates a demonstration of why service was not made
within the time constraints.’”). Because the question of what
constitutes “good cause” necessarily is determined on a case-by-
case basis within the discretion of the district court, courts
have declined to give it a concrete definition, preferring to
analyze a number of factors. These include whether: 1) the delay
in service was outside the plaintiff’s control, 2) the defendant
was evasive, 3) the plaintiff acted diligently or made
reasonable efforts, 4) the plaintiff is pro se or in forma
pauperis, 5) the defendant will be prejudiced, or 6) the
plaintiff asked for an extension of time under Rule 6(b)(1)(A).
See Kurka v. Iowa Cty., Iowa, 628 F.3d 953, 957 (8th Cir. 2010);
Dickerson, 604 F.3d at 752. In addition, the Supreme Court has
“never suggested that procedural rules in ordinary civil
litigation should be interpreted so as to excuse mistakes by
those who proceed without counsel.” McNeil v. United States,
508
U.S. 106, 113 (1993).
Under the facts in this case, we agree with the district
court that Scott did not demonstrate good cause for his repeated
failure to effect proper service. Even acknowledging that
Scott’s pro se status may have contributed to the shortcomings
in service of process, his status is not the only relevant
factor a district court should consider. Although Scott
15
admittedly made multiple attempts at service, those efforts
lacked diligence and reasonableness.
Scott relies heavily on the fact that the Clerk sent him
only one copy of the USMS form. However, he has never explained
why he failed to inquire about additional forms at the Clerk’s
office and waited to return the one form for DLLR until the
final day on which he had been directed to do so. Moreover, the
Clerk’s error was not so onerous as to prevent him from taking
simple steps, such as making copies of the USMS form, to cure
the problem. We find it even more confounding that the forms he
claims he retrieved in person in mid-December 2014 were not
submitted to the Clerk for nearly two months.
Setting aside issues of timeliness, service of process on
DLLR was insufficient on both occasions for the sole reason that
Scott refused to follow the district court’s specific
instructions about how to find the proper service address for
DLLR. In the second instance, he could simply have copied it
directly from the defendants’ motion to dismiss into the “Serve
At” line of the USMS form. The only justification Scott has
provided for his repeated failure is that he “is not a savvy
internet user and did not understand the relevance of the
reference to the resident agent.” Such a subjective
misunderstanding of procedural requirements cannot excuse
Scott’s noncompliance. See McNeil, 508 U.S. at 113 (“[R]ules of
16
procedure are based on the assumption that litigation is
normally conducted by lawyers.”).
Even Scott’s attorney, after noting her appearance, did not
file a motion pursuant to Fed. R. Civ. P. 6(b) seeking to extend
the time in which to serve. Instead, she added a brief, one-
sentence request for an extension in her response to the
defendants’ motion to dismiss, which was not filed until nearly
one month after she noted her appearance. We note that she also
included a one-paragraph request for leave to amend the
complaint if the complaint was found “deficient and subject to
dismissal.” J.A. 186. Despite the elapse of one month between
her appearance and the filing of any response, Scott’s attorney
failed to comply with the District of Maryland’s local rule
requiring that she both attempt to obtain consent of opposing
counsel and attach the proposed amended complaint. 3 In
consideration of all these facts, we conclude that the district
court did not abuse its discretion by dismissing the complaint
for insufficient service of process. 4
3 District of Maryland Local Rule 103.6(a).
4 Scott’s attorney urges us to view the defendants’ motion
to dismiss as a motion to quash. See Vorhees v. Fischer &
Krecke, 697 F.2d 574, 576 (4th Cir. 1983) (“[T]he statute of
limitations had run on the plaintiffs’ various causes of action
. . . the action should not have been dismissed until the
plaintiffs were given a reasonable opportunity to attempt to
effect valid service of process on the defendant.”). We are
(Continued)
17
C.
We turn next to the question of whether the district court
properly dismissed the claims against the individual defendants.
As discussed earlier, based on Scott’s in forma pauperis status,
his March 2015 attempts to serve the individual defendants were
timely. Nevertheless, regardless of whether the individual
defendants were properly served, the district court correctly
concluded that the violations of Title VII and the ADEA alleged
in the complaint failed to state a claim for relief against
them.
In Birkbeck v. Marvel Lighting Corp., we held that “the
ADEA limits civil liability to the employer,” and that Congress
did not intend to impose personal liability on an employer’s
agents. 30 F.3d 507, 510-11 (4th Cir. 1994). Likewise, in Lissau
v. Southern Food Services, Inc., interpreting similar language
in Title VII, we held that individuals are not subject to
liability under that statute.
159 F.3d 177, 180-81 (4th Cir.
1998). Therefore, we agree with the district court that, whether
under no obligation to do so. Scott had a reasonable opportunity
to effect valid service, and he failed to do so on multiple
occasions. Moreover, the district court dismissed the case more
than two months after the service period had expired; at no time
did it cut short Scott’s chance at proper service.
18
they were properly served or not, the individual defendants are
not appropriate parties to this lawsuit.
IV.
For the reasons discussed, the judgment of the district
court is
AFFIRMED.
19
