Suegart v. United States Customs Service

180 F.R.D. 276, 1998 U.S. Dist. LEXIS 10509, 1998 WL 397054
CourtDistrict Court, E.D. Pennsylvania
DecidedJuly 13, 1998
DocketCiv.A. No. 97-CV-6552
StatusPublished
Cited by10 cases

This text of 180 F.R.D. 276 (Suegart v. United States Customs Service) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Suegart v. United States Customs Service, 180 F.R.D. 276, 1998 U.S. Dist. LEXIS 10509, 1998 WL 397054 (E.D. Pa. 1998).

Opinion

MEMORANDUM AND ORDER

JOYNER, District Judge.

The Defendants have filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(5), for failure to complete proper service on Defendants. The Plaintiffs’, filed a cross-motion and reply to Defendants’ motion, pursuant to Federal Rule of Civil Procedure 4(m), to enlarge the time within which proper service of process upon Defendants can be made. For the reasons set forth below, Defendants’ motion is denied in its entirety and Plaintiffs’ cross-motion is granted.

Background

Plaintiffs’ action against the United States Customs Service alleges false imprisonment.1 Plaintiffs filed claims against the United States Customs Agency, United States Customs Special Agents James T. Zogorsky (“Zogorsky”) and Daniel Markovchick (“Markovchick”), and Confidential Informant, Mike Girard,2 on October 23, 1997, alleging violations of 42 U.S.C. § 1983. Defendants, Zogorsky and Markovchick, claim that they have not been properly served by the plaintiffs because the plaintiffs have failed to serve the defendants in their individual capacities.

Plaintiffs properly filed service of process upon the United States Customs Service and the United States Department of Justice, on behalf of the Attorney General, on November 12, 1997. In addition, Plaintiffs properly served the United States Attorney’s office for the Eastern District of Pennsylvania on January 8, 1998. With regard to the individual defendants, Zogorsky and Markovchick, Plaintiffs’ counsel claims he had been unable to ascertain the location of the defendants in their individual capacities until March 21, 1998. Plaintiffs claim that they did not know where the individual agents resided or worked, and, with respect to agent Markovchick, the Plaintiffs did not know the correct spelling of his first or last name.

Plaintiffs’ counsel claims that in an effort to locate Zogorsky and Markovchick, he telephoned both the Washington D.C. and the Baltimore branches of the United States Customs Service to determine if the individual defendants were based there. He also inquired as to the correct spelling of agent Markovchick’s name. Plaintiffs’ counsel asserts that after receiving a letter dated December 31, 1997, from Karen T. Tomlinson, Esq., (“Tomlinson”) Assistant United States Attorney, counsel spoke with Tomlinson on January 6, 1998, regarding service of process and the time within which the United States would file an answer. Pursuant to Rule 12(a)(3) of the Fed.R.Civ.P., Tomlinson informed both this Court and Plaintiffs’ counsel that she would be .filing a responsive pleading to the complaint by March 9, 1998, sixty days after service had been effected on the United States Customs Service and the United States Attorney for the Eastern District of Pennsylvania. On March 6, 1998, Tomlinson filed an unopposed motion for extension of time to respond to Plaintiffs’ complaint. The motion was granted by this [278]*278Court and Plaintiffs’ time for response was extended until March 21, 1998. While the motion stated that as individual defendants, Zogorsky and Markovchick had not yet been served with plaintiffs’ complaint, it also stated that these agents sought representation from the United States Department of Justice. Furthermore, the U.S. Attorneys office stated that for purposes of that motion they had limited authority to represent Zogorsky and Markovchick, and further representation was currently under review by the Department of Justice.

Plaintiffs’ counsel claims that as a result of the conversation with Tomlinson regarding the extension of time she needed to answer his complaint, he understood her request to be an indication that the United States Attorney would represent the individual defendants. In addition, Plaintiffs’ counsel claims that he, in good faith, believed that Tomlin-son was waiving personal service on behalf of the individual defendants. Plaintiffs’ counsel claims that it was not until he received the answer and the defendants’ motion to dismiss, that he realized the time within which to serve the individual defendants had expired.

Furthermore, Plaintiffs’ counsel contends that even after ascertaining that the individual defendants were based in the Philadelphia office, attempts to serve the defendants personally were frustrated by defendants’ attempts to evade service of process. Plaintiffs’ counsel sent a process server down to defendants’ office both in the mornings and afternoons of March 24 and 25, 1998, as well as once on March 26,1998, and each time the server was told the Defendants were not there. Plaintiffs’ counsel claims that on the third and final attempt, the secretary at the office began to tell the process server how he could find the individual defendants, but another employee stopped her.

Plaintiffs’ counsel claims that at no time was he ever able to ascertain the defendants’ home addresses. On April 8, 1998, both Zogorsky and Markovchick were served personally at their offices.

By this motion, Defendants argue that this case should be dismissed under Fed.R.Civ.P. 12(b)(5). Defendants’ 12(b)(5) motion rests upon the grounds that the Plaintiffs failed to complete proper service on these individual defendants in accordance with Rule 4 of the Federal Rules of Civil Procedure.

Plaintiffs, in their cross-motion, argue that Defendants’ motion be dismissed under Fed. R.Civ.P. 4(m). Plaintiffs’ 4(m) motion to enlarge their time limit for service of process rests upon the grounds that dismissal would be fatal to the Plaintiffs’ action and that Plaintiffs’ counsel believed, in good faith, that defendants waived service.

Discussion

Defendants’ motion to dismiss for failure to complete proper service, invokes Fed. R.Civ.P. 12(b)(5). Under this rule a federal court is empowered to dismiss a ease if service of process is insufficient. In determining a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(5), the party making the service has the burden of demonstrating its validity when an objection to the service is made. Addanki v. Defense Logistics Agency Defense Personnel Support Center, No. Civ. A.95-CV-696, 1996 WL 635590 at *1 (E.D.Pa. Oct. 31, 1996); Grand Entertainment Group v. Star Media Sales, 988 F.2d 476, 488 (3d Cir.1993) (citing 4A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure, § 1083 (1987)). Rule 4(m) defines the time in which service of process must be achieved. Rule 4(m) provides as follows:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative .

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Bluebook (online)
180 F.R.D. 276, 1998 U.S. Dist. LEXIS 10509, 1998 WL 397054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suegart-v-united-states-customs-service-paed-1998.