United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge.
pending and ready for resolution in this employment
discrimination action is a motion to dismiss filed by
Defendants University of Maryland, College Park and Maryland
Small Business Development Center. (ECF No. 8). The issues
are fully briefed and the court now rules pursuant to Local
Rule 105.6, no hearing being deemed necessary. For the
reasons that follow, Defendants' motion will be denied in
part and granted in part.
29, 2016, Plaintiff, through counsel, commenced this action
against Defendants. Summonses were issued and electronically
provided to counsel for service on June 30.
October 26, Plaintiff submitted to the Clerk a paper titled
“Revocation of Power of Attorney” attesting that
she revoked power of attorney to her attorney's firm,
Tully Rinckey, PLLC as of October 24 and will be proceeding
pro se. Subsequently Plaintiff, pro se,
filed proofs of service for both defendants on October 27 and
October 28 (ECF Nos. 6 and 7).
November 14, Defendants filed the instant motion. Plaintiff,
again pro se, filed a response in opposition and an
amended complaint (ECF Nos. 11 and 10, respectively). The
court provided Plaintiff 14 days to supplement her amended
complaint with a red-line version pursuant to Local Rule
103.6.c on November 18 and also sent correspondence to
Plaintiff's counsel requesting her to advise the court of
the status of her representation of Plaintiff (ECF Nos. 12
and 13). Defendants filed a reply on December 1 (ECF No. 14).
motion relates that a member of Plaintiff's counsel's
firm, Jason Aroz, sent Defendants' counsel a courtesy
copy of the complaint via email on July 14 and August 9. The
transmittals specifically stated that they were not meant to
effectuate service but rather to provide Defendants with a
courtesy notice in the event that Defendants wished to engage
in preliminary settlement discussions.
Service of Process
have moved to dismiss for insufficient service of process
under Rule 12(b)(5). Rule 4(m) requires a plaintiff to serve
a defendant “within 90 days after the complaint is
filed.” If the defendants have not been served within
this time frame, “the court . . . must dismiss the
action without prejudice against that defendant.”
Fed.R.Civ.P. 4(m) (emphasis added). However, “if the
plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.”
cause” generally requires the Plaintiff to demonstrate
that she exercised “reasonable diligence in trying to
effect service.” Jones v. Sears and Roebuck,
No. DKC-15-3092, 2016 WL 1696557, at *2 (D. Md. Apr. 28,
2016). Circumstances amounting to good cause may be
“where a defendant is evading service; where the
plaintiff experienced difficulty in obtaining a
defendant's proper address; where court staff misdirected
a pro se plaintiff as to the appropriate procedure for
service; or where plaintiff was unaware of the defendant in
service until after the deadline expired.” Id.
(citing Hoffman v. Balt. Police Dep't, 379
F.Supp.2d 778, 786 (D. Md. 2005)).
contend that Plaintiff did not effect service until October
24, 2016, which was 27 days past Rule 4(m)'s 90 day
deadline. Plaintiff's response in opposition, filed
pro se, argues that she consulted and abided by the
instructions for filing a civil action found on the
court's website which (at the time) advised her that she
had 120 days to effect service. She concedes that her attorney
did not properly serve Defendants and states that she
“took the steps to protect her rights.” Further,
she was unaware that her attorney had not withdrawn until the
Clerk advised her when she brought paperwork to the
courthouse to be filed on October 24.
interest of justice and recognizing Plaintiff's pro
se status, the court will deny the motion to dismiss for
untimely service. She acted reasonably promptly to remedy the
service issue and was misled by the court's erroneous
website information. The brief delay was not prejudicial.
Status of MSBDC
also request that Defendant MSBDC be dismissed, presumably
pursuant to Fed.R.Civ.P. 12(b)(6), because it operates as an
entity within the University and is therefore a unit within
the University, not a separate entity, and it would be
redundant to sue both. Plaintiff appears to dispute some of
the assertions made, but then concedes that ...