Barrett v. City of Allentown

152 F.R.D. 46, 1993 U.S. Dist. LEXIS 14612, 1993 WL 487514
District Court, E.D. Pennsylvania·Decided October 13, 1993·No. Civ. A. No. 92-5024·Published·Cited by 10 cases

Opinion

MEMORANDUM AND ORDER

HUYETT, District Judge.

Defendants, the City of Allentown, Joseph Daddona, Wayne Stephens, Joseph N. Hanna, Dean Schwartz, Mark Conway and other unnamed police defendants (collectively, the “City Defendants”) have moved to dismiss Plaintiffs’ action pursuant to Fed.R.Civ.P. 12(b)(5) for failure to make proper service.1 In the alternative, the City Defendants move to dismiss the Complaint pursuant to Fed. R.Civ.P. 12(b)(6) for failure to state a cause of action upon which relief may be granted. The Plaintiffs, Cynthia Barrett, Sun Splash, Inc. and Baron C. Smith (“Plaintiffs”) have jointly filed an affidavit in opposition to the City Defendants’ Motion to Dismiss. Because the Plaintiffs are proceeding pro se the Court will treat the affidavit as a response to the City Defendants’ motion.

The Plaintiffs have filed a Complaint and an amended Complaint against the City Defendants for alleged civil rights violations arising from the search of Cynthia Barrett’s home and the confiscation of an automobile belonging to Sun Splash, Inc. Plaintiffs filed the original complaint with the Clerk on February 11,1993. They filed an amended complaint on May 24, 1993. Since then Plaintiffs have made two attempts to serve the City Defendants with the original Complaint and one attempt to serve the amended Complaint.

The Plaintiffs first attempted to serve the City Defendants on April 14, 1993, by mailing, first class, copies of the original complaint and a summons form to the private law [48]*48office of the City Solicitor. The summons was not signed by the court clerk nor imprinted with the seal of the court. The summonses were addressed to the individual defendants c/o Thomas Anewalt, the City Solicitor. No signed copies of the Notice and Acknowledgement form were ever filed with the Clerk.

On May 21, 1993, Plaintiffs attempted to serve the City Defendants with an amended complaint. A copy of the amended complaint was mailed, first class, to the private law office of the City Solicitor. According to the City Defendants, this document was not accompanied by any form of summons.

On May 28, 1993, the Plaintiffs again attempted service of the original complaint. Plaintiffs mailed, by certified mail, six copies of the original complaint to the City Solicitor’s office at City Hall. Each complaint was accompanied by one copy of a summons which had been signed and dated by the Clerk, although no evidence of a seal appears on the copies. Each copy was accompanied by only one copy of the Notice and Acknowledgement of Receipt of Summons and Complaint. No return envelopes were included. A secretary at the City Solicitor’s office signed the Notice and Acknowledgment forms on behalf of the City of Allentown, Joseph Daddona, Joseph N. Hanna, Mark Conway, Dean Schwartz and Wayne Stephens.

The City Defendants argue, albeit indirectly, that this action should be dismissed or service quashed because service has not properly been effected within the 120 day period following filing of the complaint as required under Fed.R.Civ.P. 4(j). Fed.R.Civ.P. 4(j) provides:

[i]f a service of summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

Thus, Rule 4(j) warrants dismissal where proper service is not made within 120 days following filing of a complaint, absent a showing of good cause by the plaintiffs.

Although the City Defendants have not formally moved pursuant to Rule 4(j), the Court may on its own initiative dismiss an action for failure to make timely service. The Court finds that service was not perfected within the 120 day period and good cause was not shown for failure to make proper service. Accordingly, the Complaint is DISMISSED WITHOUT PREJUDICE as to each City Defendant. Because the Complaint has been dismissed in its entirety, there is no need for the Court to address the City Defendants’ motions pursuant to Fed.R.Civ.P. 12(b)(5) or 12(b)(6).

The City of Allentown

Service of process upon a municipal corporation is governed by Fed.R.Civ.P. 4(d)(6), which provides that service shall be made:

Upon a state or municipal corporation or other governmental organization thereof subject to suit, by delivering a copy of the summons and of the complaint to the chief executive officer thereof or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant.

Thus, Rule 4 does not authorize service by mail on a city or municipal corporation. Norlock v. City of Garland, 768 F.2d 654, 656 (5th Cir.1985).

Pennsylvania Rule of Civil Procedure 422 governs service of process on the Commonwealth of Pennsylvania and its political subdivisions. Pa.R.Civ.P. 422(b) provides:

Service of original process upon a political subdivision shall be made by handing a copy to
(1) an agent duly authorized by the political subdivision to receive service of process, or
(2) the person in charge at the office of the defendant, or
(3) the mayor, or the president, chairman, secretary, or clerk of the tax levying body thereof, and in counties where there is no tax levying body, the chairman of county commissioners.

[49]*49None of the three attempts at service, made on April 14, May 21st or May 28th fulfil the requirements of Rule 4 or Pa. R.Civ.P. 422(b). The deficiency common to all three attempts was the failure to make hand delivery. Hand delivery to an enumerated entity is required pursuant to both the Federal Rules and Pennsylvania law. Mailing copies of the complaint to the City Solicitor is insufficient to effect service upon the City of Allentown.

Additionally, the April 14th and May 28th attempts at service of the original complaint violated the provisions of Fed.R.Civ.P. 4(b), which requires that a summons be signed and sealed by the Clerk of the Court. Failure to have a summons signed by a clerk is a serious deficiency which cannot be overlooked. Kramer v. Scientific Control Corp., 365 F.Supp. 780, 788 (E.D.Pa.1973); Aim Telephones, Inc. v. AG Communications, 551 So.2d 460 (D.N.J.1988).

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Barrett v. City of Allentown, 152 F.R.D. 46, 1993 U.S. Dist. LEXIS 14612, 1993 WL 487514 (E.D. Pa. 1993).

152 F.R.D. 46 (Barrett v. City of Allentown) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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