UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Michael A. Doyle
v. Civil No. 21-cv-112-LM Opinion No. 2021 DNH 118 P YMCA of New Hampshire
ORDER
Pro se plaintiff Michael A. Doyle brings this action against defendant The
Granite Young Men’s Christian Association1 (“Granite YMCA”), alleging that
defendant violated his rights under the Americans With Disabilities Act (“the
ADA”), 42 U.S.C. § 12181 et seq. Defendant moves to dismiss (doc. no. 6) on the
bases of insufficient process and insufficient service of process. See Fed. R. Civ. P.
12(b)(4), (5). For the following reasons, defendant’s motion is denied.
BACKGROUND
The following background facts are drawn from the complaint. Plaintiff
suffers from rheumatoid arthritis in his knees, ankles, and hips. As a result,
plaintiff has intermittent walking difficulties and must use handicap parking
spaces. Plaintiff also has difficulty getting out of chairs that are low to the ground.
Defendant owns and operates a facility in Portsmouth, New Hampshire,
known as the YMCA of the Seacoast (“Seacoast YMCA”). Seacoast YMCA operates
an outdoor pool. Plaintiff is or was a member of this facility and used the pool.
1 The complaint misnames defendant as “YMCA of New Hampshire.” However, defendant did not permit plaintiff to park in handicap parking spaces
close to the pool entrance. In addition, the armchairs defendant provided for the
pool area were too low to the ground for plaintiff to use. This forced plaintiff to
carry his own beach chair to the pool area.
Plaintiff, proceeding pro se, brought this action against “YMCA of New
Hampshire” in February 2021. Plaintiff alleges in his complaint that YMCA of New
Hampshire’s actions violate the ADA. He seeks declaratory and injunctive relief.
On April 5, 2021, plaintiff filed a motion requesting additional time to
complete service of process.2 See doc. no. 2. Plaintiff included a copy of a summons
with his motion. The summons includes a case caption identifying the defendant as
YMCA of New Hampshire. It does not contain the clerk of court’s signature or the
court’s seal. In an accompanying certificate of service dated April 1, 2021, plaintiff
certified under penalty of perjury that he caused the summons to be served “upon
Defendant’s management, David Ports, President/CEO at the defendant’s address of
15 North State St., Concord, NH 03301.” Id. at 4.
On April 23, plaintiff filed a return of service with the court. See doc. no. 3.
As with the summons accompanying plaintiff’s April 5 motion, the summons
includes a case caption identifying the defendant as YMCA of New Hampshire and
lacks the court’s seal as well as the clerk’s signature. The certified mail receipt
accompanying the return indicates that the summons was sent to “YMCA of N.H.”
at an address of 15 North State Street in Concord, New Hampshire.
2 The court granted this motion in an endorsed order on April 13.
2 On June 14, defendant appeared through counsel and moved for additional
time to respond to the complaint. See doc. no. 4. Defendant stated in this motion
that it owned and operated Seacoast YMCA and it appeared to be the proper
defendant in this action, but that it had been misnamed in the complaint as YMCA
of New Hampshire, a non-entity. Defendant stated that it became aware of
plaintiff’s complaint after it learned of plaintiff’s attempt to effect service of process
at 15 North State Street in Concord, the address of a YMCA facility that defendant
did not operate. The court granted defendant’s motion in an endorsed order.
On June 28, plaintiff filed an additional return of service with the court. See
doc. no. 5. The summons included with the return contained a case caption
identifying the defendant as YMCA of New Hampshire. The summons failed to
include the clerk’s signature or the court’s seal. The certificate of service included
with the return indicates that Deputy Sheriff Michael E. Chavez delivered the
summons to “Kelly McKenna, Executive Director, YMCA of New Hampshire” at 550
Peverly Hill Road in Portsmouth, New Hampshire.
On July 1, defendant filed the instant motion to dismiss for insufficient
process and insufficient service of process.3 See doc. no. 6.
3 On July 12, plaintiff filed another motion to extend time for service. See doc. no. 9. He filed an additional return of service that same day. See doc. no. 8. The case caption on the summons once again identifies the defendant as YMCA of New Hampshire. The summons does, however, include the court’s seal and the clerk’s signature. The return also includes a blank proof of service form.
3 DISCUSSION
Defendant acknowledges that it is the proper defendant in this action and
that it has received actual notice of plaintiff’s complaint. Doc. no. 6 at 1, 6.
Moreover, the court granted defendant’s request for additional time to object or
respond to plaintiff’s complaint. Defendant now moves to dismiss for insufficient
process under Rule 12(b)(4) and insufficient service of process under Rule 12(b)(5).
I. Legal Standard
A defendant may challenge the sufficiency of process under Rule 12(b)(4) and
may challenge the manner in which process was served under Rule 12(b)(5). See 5B
Arthur R. Miller et al., Federal Practice and Procedure: Civil § 1353 (3d ed.). A
challenge to the sufficiency of process “concerns the form of the process rather than
the manner or method of its service.” Girard v. Dodd, Civ. No. 2:16-CV-165-DBH,
2016 WL 4734373, at *1 (D. Me. Sept. 9, 2016). “Thus, a motion under Rule 12(b)(4)
in effect challenges the content of the summons and whether it complied with
Federal Rule of Civil Procedure 4(a) and (b).” Id. By contrast, a “Rule 12(b)(5)
motion is the proper vehicle for challenging the mode of delivery or the lack of
delivery of the summons and complaint.” Miller et al., supra.
II. Insufficient Process
Rule 4(a)(1) requires the summons to “name . . . the parties,” “be directed to
the defendant,” and bear the clerk’s signature and the court’s seal. Fed. R. Civ. P.
4(a)(1). Defendant argues that both the April and June returns fail to demonstrate
that defendant received process that complied with these requirements. Defendant
4 is correct that these summonses misname defendant in the case caption and do not
include the clerk’s signature or the court’s seal. However, a Rule 12(b)(4) motion to
dismiss “will be granted only when the defect is prejudicial to the defendant.”
Miller et al., supra. Defendant does not argue that it has been prejudiced by these
defects in process. And, given that defendant received actual notice of the
complaint and an extension of time to respond thereto, the court fails to see how
any of these defects could be prejudicial. Accordingly, defendant’s motion to dismiss
is denied insofar as it is based on insufficient process.
That said, “the court lacks discretion to ignore deficiencies in process.”
Wilson v. Brock, No. Civ. 01-284-JD, 2002 WL 1676287, at *3 (D.N.H. July 18, 2002)
(citing Fed. R. Civ. P. 4(m)); see also Omni Capital Int’l v.
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Michael A. Doyle
v. Civil No. 21-cv-112-LM Opinion No. 2021 DNH 118 P YMCA of New Hampshire
ORDER
Pro se plaintiff Michael A. Doyle brings this action against defendant The
Granite Young Men’s Christian Association1 (“Granite YMCA”), alleging that
defendant violated his rights under the Americans With Disabilities Act (“the
ADA”), 42 U.S.C. § 12181 et seq. Defendant moves to dismiss (doc. no. 6) on the
bases of insufficient process and insufficient service of process. See Fed. R. Civ. P.
12(b)(4), (5). For the following reasons, defendant’s motion is denied.
BACKGROUND
The following background facts are drawn from the complaint. Plaintiff
suffers from rheumatoid arthritis in his knees, ankles, and hips. As a result,
plaintiff has intermittent walking difficulties and must use handicap parking
spaces. Plaintiff also has difficulty getting out of chairs that are low to the ground.
Defendant owns and operates a facility in Portsmouth, New Hampshire,
known as the YMCA of the Seacoast (“Seacoast YMCA”). Seacoast YMCA operates
an outdoor pool. Plaintiff is or was a member of this facility and used the pool.
1 The complaint misnames defendant as “YMCA of New Hampshire.” However, defendant did not permit plaintiff to park in handicap parking spaces
close to the pool entrance. In addition, the armchairs defendant provided for the
pool area were too low to the ground for plaintiff to use. This forced plaintiff to
carry his own beach chair to the pool area.
Plaintiff, proceeding pro se, brought this action against “YMCA of New
Hampshire” in February 2021. Plaintiff alleges in his complaint that YMCA of New
Hampshire’s actions violate the ADA. He seeks declaratory and injunctive relief.
On April 5, 2021, plaintiff filed a motion requesting additional time to
complete service of process.2 See doc. no. 2. Plaintiff included a copy of a summons
with his motion. The summons includes a case caption identifying the defendant as
YMCA of New Hampshire. It does not contain the clerk of court’s signature or the
court’s seal. In an accompanying certificate of service dated April 1, 2021, plaintiff
certified under penalty of perjury that he caused the summons to be served “upon
Defendant’s management, David Ports, President/CEO at the defendant’s address of
15 North State St., Concord, NH 03301.” Id. at 4.
On April 23, plaintiff filed a return of service with the court. See doc. no. 3.
As with the summons accompanying plaintiff’s April 5 motion, the summons
includes a case caption identifying the defendant as YMCA of New Hampshire and
lacks the court’s seal as well as the clerk’s signature. The certified mail receipt
accompanying the return indicates that the summons was sent to “YMCA of N.H.”
at an address of 15 North State Street in Concord, New Hampshire.
2 The court granted this motion in an endorsed order on April 13.
2 On June 14, defendant appeared through counsel and moved for additional
time to respond to the complaint. See doc. no. 4. Defendant stated in this motion
that it owned and operated Seacoast YMCA and it appeared to be the proper
defendant in this action, but that it had been misnamed in the complaint as YMCA
of New Hampshire, a non-entity. Defendant stated that it became aware of
plaintiff’s complaint after it learned of plaintiff’s attempt to effect service of process
at 15 North State Street in Concord, the address of a YMCA facility that defendant
did not operate. The court granted defendant’s motion in an endorsed order.
On June 28, plaintiff filed an additional return of service with the court. See
doc. no. 5. The summons included with the return contained a case caption
identifying the defendant as YMCA of New Hampshire. The summons failed to
include the clerk’s signature or the court’s seal. The certificate of service included
with the return indicates that Deputy Sheriff Michael E. Chavez delivered the
summons to “Kelly McKenna, Executive Director, YMCA of New Hampshire” at 550
Peverly Hill Road in Portsmouth, New Hampshire.
On July 1, defendant filed the instant motion to dismiss for insufficient
process and insufficient service of process.3 See doc. no. 6.
3 On July 12, plaintiff filed another motion to extend time for service. See doc. no. 9. He filed an additional return of service that same day. See doc. no. 8. The case caption on the summons once again identifies the defendant as YMCA of New Hampshire. The summons does, however, include the court’s seal and the clerk’s signature. The return also includes a blank proof of service form.
3 DISCUSSION
Defendant acknowledges that it is the proper defendant in this action and
that it has received actual notice of plaintiff’s complaint. Doc. no. 6 at 1, 6.
Moreover, the court granted defendant’s request for additional time to object or
respond to plaintiff’s complaint. Defendant now moves to dismiss for insufficient
process under Rule 12(b)(4) and insufficient service of process under Rule 12(b)(5).
I. Legal Standard
A defendant may challenge the sufficiency of process under Rule 12(b)(4) and
may challenge the manner in which process was served under Rule 12(b)(5). See 5B
Arthur R. Miller et al., Federal Practice and Procedure: Civil § 1353 (3d ed.). A
challenge to the sufficiency of process “concerns the form of the process rather than
the manner or method of its service.” Girard v. Dodd, Civ. No. 2:16-CV-165-DBH,
2016 WL 4734373, at *1 (D. Me. Sept. 9, 2016). “Thus, a motion under Rule 12(b)(4)
in effect challenges the content of the summons and whether it complied with
Federal Rule of Civil Procedure 4(a) and (b).” Id. By contrast, a “Rule 12(b)(5)
motion is the proper vehicle for challenging the mode of delivery or the lack of
delivery of the summons and complaint.” Miller et al., supra.
II. Insufficient Process
Rule 4(a)(1) requires the summons to “name . . . the parties,” “be directed to
the defendant,” and bear the clerk’s signature and the court’s seal. Fed. R. Civ. P.
4(a)(1). Defendant argues that both the April and June returns fail to demonstrate
that defendant received process that complied with these requirements. Defendant
4 is correct that these summonses misname defendant in the case caption and do not
include the clerk’s signature or the court’s seal. However, a Rule 12(b)(4) motion to
dismiss “will be granted only when the defect is prejudicial to the defendant.”
Miller et al., supra. Defendant does not argue that it has been prejudiced by these
defects in process. And, given that defendant received actual notice of the
complaint and an extension of time to respond thereto, the court fails to see how
any of these defects could be prejudicial. Accordingly, defendant’s motion to dismiss
is denied insofar as it is based on insufficient process.
That said, “the court lacks discretion to ignore deficiencies in process.”
Wilson v. Brock, No. Civ. 01-284-JD, 2002 WL 1676287, at *3 (D.N.H. July 18, 2002)
(citing Fed. R. Civ. P. 4(m)); see also Omni Capital Int’l v. Rudolf Wolff & Co., 484
U.S. 97, 104 (1987) (service of process is prerequisite to court’s exercise of personal
jurisdiction over defendant). As will be further explained below in Section III,
Plaintiff is ordered to serve process on defendant within thirty days of this order’s
issuance. See Fed. R. Civ. P. 4(m).
III. Insufficient Service of Process
There are two ways in which a plaintiff may serve a corporation under
Federal Rule of Civil Procedure 4.4 First, a plaintiff may serve a corporation “by
delivering a copy of the summons and of the complaint to an officer, a managing or
4 The court takes judicial notice of the fact that “The Granite Young Men’s
Christian Association” is a registered nonprofit corporation according to the New Hampshire Secretary of State’s website. See Fed. R. Civ. P. 201; Villano v. Long Island Pipe Supply, Inc., Civ. No. 19-cv-808-LM, 2020 WL 1244929, at *3 (D.N.H. Mar. 16, 2020).
5 general agent, or any other agent authorized by appointment . . . to receive service
of process.” Fed. R. Civ. P. 4(h)(1)(B). Neither the April nor the June return of
service indicates that plaintiff served process on an officer, managing agent, or
general agent of defendant, and defendant states it has no authorized agent to
receive service of process on its behalf. Accordingly, plaintiff’s service of process
was not in compliance with Rule 4(h)(1)(B).
Alternatively, a plaintiff may serve a corporation “by following the law
governing service either of the state where the district court is located or the state
where the defendant is located when service is made.” Villano v. Long Island Pipe
Supply, Inc., Civ. No. 19-cv-808-LM, 2020 WL 1244929, at *3 (D.N.H. Mar. 16,
2020); see Fed. R. Civ. P. 4(e)(1), (h)(1)(A). “Under New Hampshire law, service on
a corporation may be accomplished by serving the corporation’s registered agent.”
Villano, 2020 WL 1244929, at *3 (citing RSA 293-A:5.04). “If a corporation has no
registered agent, . . . the corporation may be served by registered or certified mail,
return receipt requested, addressed to the secretary of the corporation at its
principal office.” RSA 293-A:5.04(b). Here, the court takes judicial notice of the fact
that the New Hampshire Secretary of State’s website lists Granite YMCA’s
principal address as 117 Market St., Manchester, NH, 03101. See Fed. R. Ev. 201.
The returns of service filed by plaintiff do not indicate that a summons was
delivered to this address. Accordingly, plaintiff’s service of process was not in
compliance with Rule 4(h)(1)(A).
6 That said, “[i]t is well known that the dismissal of the action under Fed. R.
Civ. P. 12(b)(5) is inappropriate where there is a ‘reasonably conceivable means’
through which service may be obtained and jurisdiction acquired over the
defendant.” Ramirez de Arellano v. Colloïdes Naturels Int’l., 236 F.R.D. 83, 85 n.4
(D.P.R. 2006) (quoting Grant-Brooks v. Nationscredit Home Equity Servs. Corp.,
No. CIV.A. 3:01-CV-2327-, 2002 WL 424566, at *4 (N.D. Tex. 2002)). “Furthermore,
if the first service is ineffective, and the defects are curable, the Court should treat
a motion to dismiss as a motion to quash service of process in the alternative and
retain the case pending effective service.” Id.
Here, there is a reasonably conceivable means through which plaintiff may
effect service of process upon defendant Granite YMCA. Defendant recognizes in its
motion that plaintiff could accomplish service “by registered mail addressed to the
secretary of Granite YMCA at 117 Market Street, Manchester, NH 03101.” Doc. no.
6-1 at 5. The court therefore declines to dismiss this action and instead quashes all
prior attempts at service of process. Plaintiff is ordered to serve defendant, The
Granite Young Men’s Christian Association, within thirty days. See Fed. R. Civ. P.
4(m). Plaintiff may serve defendant by registered or certified mail (return receipt
requested) addressed to the secretary of Granite YMCA at 117 Market Street,
Manchester, NH 03101.
The court appreciates that the plaintiff in this disability discrimination
action is self-represented and may be unfamiliar with court procedures. Plaintiff is
7 encouraged to review Rule 4 of the Federal Rules of Civil Procedure as well as the
court’s guide for pro se civil litigants.5
CONCLUSION
Defendant’s motion to dismiss (doc. no. 6) is denied. All prior attempts at
service of process upon defendant are quashed. Plaintiff is ordered to effect service
of process as described in this order. Plaintiff’s motion to extend time for service
(doc. no. 9) is denied as moot.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
July 26, 2021
cc: Michael A. Doyle, pro se Counsel of Record
5 The Federal Rules of Civil Procedure are available online at:
https://www.uscourts.gov/sites/default/files/federal_rules_of_civil_procedure_dec_1_ 2019_0.pdf.
The court’s guide for pro se civil litigants is available online at: https://www.nhd.uscourts.gov/pdf/ProSe_Guide_2017.pdf