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Shilling v. Thomas

United States District Court, D. Maryland

March 16, 2017

CAROL J. SHILLING, Plaintiff,
v.
IRA THOMAS, et al., Defendants.

          MEMORANDUM OPINION

          Paul W. Grimm, United States District Judge

         After being exposed to Sporicidin[1] at the school where she worked and subsequently experiencing neurological problems, Carol J. Shilling filed a self-represented products liability suit in federal court in Washington State against the manufacturer, Contec, Inc., and its corporate executive officer, Jack McBride (collectively “Contec”), ECF No. 42-2, and a negligence action against a number of individuals who worked for the school, ECF No. 12. The United States District Court for the Western District of Washington consolidated these cases and transferred the consolidated case to this Court. ECF Nos. 15, 22. Contec has filed a Motion to Dismiss, or in the Alternative, for Summary Judgment and Memorandum in Support, ECF Nos. 42 and 42-1, [2] and Defendants Ira Thomas, Helen Parker, Jeffrey Bishop, Lionel W. Watts, Sean Yarup, and Michael J. Barnes (collectively the “School Defendants”) have filed a Motion to Dismiss and a Supplement, ECF Nos. 16 and 41.

         I will dismiss Ms. Shilling's claim against Contec, as she did not properly serve Contec or show good cause for the failure. And, because Plaintiff failed to state a claim in negligence against the School Defendants, I will dismiss that claim with prejudice. Insofar as Plaintiff's opposition to Defendants' motions, which she titled “Joinder and Response to Motions, ” is also a motion for leave to amend, I will deny her motion because amendment would be futile.

         Background[3]

         Ms. Shilling was a teacher at Needwood Academy (“Needwood”) in Rockville, Maryland, part of Montgomery County Public Schools (“MCPS”), in October 2012. Compl. 2. After school hours on October 1, 2012, she “began to smell an unusual substance in the air” while working in her classroom. Id. at 4. In an adjacent classroom, she discovered Jeffrey Bishop, the mechanical systems technician for MCPS Indoor Air Quality Department, “spraying large amounts of a liquid substance at a high rate from a pressure washer type hose and canister assembly into the running ventilation system.” Id. “Ms. Shilling asked Mr. Bishop to stop, which he did.” Id.

         Ms. Shilling notified Tonya Fields, the facilities manager, of the incident. Id. “Ms. Fields said she would need to file a report and called the principal . . . Mr. Ira Kevin Thomas.” Id. Ms. Fields and Ms. Shilling went outside, where they discussed the incident with Mr. Thomas, Mr. Bishop, and Lionel Watts, another mechanical systems technician for MCPS Indoor Air Quality Department. Id. at 5. Mr. Watts informed Ms. Shilling that the substance was Sporicidin, a disinfecting solution containing phenol. Id. According to Ms. Shilling, “[p]roper protocols indicate [that she] should have been disrobed, rinsed of the substance, given new clothing, placed in an ambulance, and sent to the emergency room.” Id. However, Mr. Thomas simply sent Ms. Shilling home. Id.

         By the next morning, Ms. Shilling began experiencing “odd sensations in the left side of her face.” Id. at 6. She noticed the smell in the air when she went to work, and her symptoms increased throughout the day. Id. “Ms. Shilling then took the next three days off and went to the doctor, who initially diagnosed Ms. Shilling with Bell's Palsy.” Id. at 7. Ms. Shilling returned to work, where “the ventilation system was not cleaned nor was her classroom cleaned, ” such that she “received further chronic exposure daily from her leather chair, her keyboard, and her classroom wood cabinetry, which in its porous state absorbed the Sporicidin.” Id.

         She “continued to feel poorly for the next six months, ” and she only felt “better when she was away from the building for extended periods of time, such as Thanksgiving and Christmas breaks.” Id. Her symptoms included “confusion, verbal communication deficits, unusual crying events, angry outbursts, dizziness, vertigo, toe lift issues, [and] Uhthoff phenomenon.”[4] Id. In mid-February, “an antiquated HVAC mercury system thermometer was broken by facilities employees, ” and Ms. Shilling speculates that “it is possible that mercury was not cleaned up appropriately and was picked up by the air stream of the HVAC system.” Id. at 8.

         On March 1, 2013, Ms. Shilling went on disability leave because she was “increasingly ill” and “completely unable to manage her students, plan her lessons, and maintain her professional responsibilities.” Compl. 9. Her “doctors have stated that her condition is trigeminal neuralgia[5] secondary to exposure to chemicals at her workplace and that recurrent episodes of exposure to environmental toxins resulted in neurological deficits and cognitive dysfunction Not Otherwise Specified (NOS)[][6].” Id. at 9. In addition, “[s]he began developing and demonstrating Pseudobar [sic] Affect (PBA)[7] immediately following the first toxic exposure with inappropriate crying in the workplace.” Id.

         Ms. Shilling filed two lawsuits, both pro se, in the United States District Court for the Western District of Washington on September 30, 2015, one against the School Defendants (Principal Ira Thomas, Building Services Manager III Helen Parker, Mechanical Systems Tech 2 Jeffrey Bishop, Mechanical Systems Tech 2 Lionell Watts, Team Leader Sean Yarup, and Environmental Abatement Supervisor Michael Barnes), ECF No. 1-1, and one against Contec, ECF No. 42-2. The District Court for the Western District of Washington dismissed the action against the School Defendants erroneously and then reopened it, ECF Nos. 8-10, entering the Complaint on the docket again on December 21, 2015, ECF No. 12.

         The court consolidated the cases, ECF No. 15, and on Defendants' motions, ECF Nos. 16 and 20, found that venue was improper and transferred the consolidated case to this Court.[8] ECF No. 22. The School Defendants renewed their motion to dismiss on various grounds, including failure to state a claim, noting that the issue of venue now is moot, see Supp. 1 n.1, ECF No. 41, and Contec moved to dismiss or alternatively for summary judgment on grounds including insufficient service of process.

         Insufficient Service of Process

         A defendant may assert insufficient service of process as a basis for dismissal. Fed.R.Civ.P. 12(b)(5). “If service is contested, the ‘plaintiff bears the burden of establishing the validity . . . pursuant to Rule 4.'” Shlikas v. SLM Corp., No. WDQ-09-2806, 2011 WL 2118843, at *2 (D. Md. May 25, 2011) (quoting O'Meara v. Waters, 464 F.Supp.2d 474, 476 (D. Md. 2006)).

         Rule 4 of the Federal Rules of Civil Procedure provides that an individual in the United States may be served by “following state law for serving a summons . . . in the state where the district court is located or where service is made, ” or by personally delivering the summons and complaint to the individual, leaving them at the individual's home with another resident of suitable age and discretion, or delivering them to an agent authorized to accept service. Fed.R.Civ.P. 4(e)(1), (2). At the time Ms. Shilling attempted to serve Contec, Inc. and McBride, this case was before the United States District Court for the Western District of Washington, and Ms. Shilling attempted to serve them in South Carolina. Therefore, Ms. Shilling could have effected service pursuant to Fed.R.Civ.P. 4(e)(2) or Washington's or South Carolina's laws for service of process. See Fed. R. Civ. P. 4(e)(1).

         Ms. Shilling attempted to serve Contec, Inc. and McBride by mailing a copy of the complaint and summons to McBride at the company's “general mailing post office box in South Carolina” via certified mail. McBride Aff. ¶ 3, Ex. 3, ECF No. 42-4. In doing so, she did not personally deliver the documents to either defendant, leave them at McBride's home, or deliver them to an agent of either defendant. Thus, she did not properly effect service pursuant to Fed.R.Civ.P. 4(e)(2)(A), (B), or (C).

         Similarly, under Washington law, a plaintiff can serve an individual defendant “by delivering a copy” of the summons “to the defendant personally, or by leaving a copy of the summons at the house of his or her usual abode with some person of suitable age and discretion then resident therein.” Wash. Rev. Code Ann. § 4.28.080(16). Additionally, if an individual “cannot with reasonable diligence be served as described” in § 4.28.080(16),

the summons may be served as [follows], and shall be deemed complete on the tenth day after the required mailing: By leaving a copy at his or her usual mailing address with a person of suitable age and discretion who is a resident, proprietor, or agent thereof, and by thereafter mailing a copy by first-class mail, postage prepaid, to the person to be served at his or her usual mailing address. For the purposes of this subsection, “usual mailing address” does not include a United States postal service post office box or the person's place of employment.

Id. § 4.28.080(17). A corporation such as Contec, Inc. is served “by delivering a copy” of the summons “to the president or other head of the company or corporation, the registered agent, secretary, cashier or managing agent thereof or to the secretary, stenographer or office assistant of the president or other head of the company or corporation, registered agent, secretary, cashier or managing agent.” Id. § 4.28.080(9). “Th[ese] method[s] also appl[y] when the person to be served resides outside the state.” Long v. Hartman, 96 Wash.App. 1042 (1999) (citing Wash. Rev. Code Ann. § 4.28.180 (“Personal service of summons or other process may be made upon any party outside the state.”). But, “personal service outside the state shall be valid only when an affidavit is made and filed to the effect that service cannot be made within the state.” Id. § 4.28.185(4).

         As noted, Ms. Shilling attempted to serve Contec, Inc. and McBride by mailing a copy of the complaint and summons to McBride at the company's “general mailing post office box in South Carolina.” McBride Aff. ¶ 3. This mailing does not constitute personal service on the corporate or individual defendant pursuant to Wash. Rev. Code Ann. § 4.28.080(9) or (16), because the complaint and summons were mailed, not delivered. Nor does it satisfy the requirements of Wash. Rev. Code Ann. § 4.28.080(17), as a copy was not left at McBride's “usual mailing address” before mailing a copy. Moreover, Contec, Inc.'s “post office box” cannot qualify as McBride's “usual mailing address” because Contec, Inc. is McBride's “place of employment, ” and neither a “place of employment” nor a “United States postal service post office box” qualifies as a “usual mailing address.” Id. § 4.28.080(17). Further, Ms. Shilling did not file an affidavit with the Washington court asserting that she could not serve Contec, Inc. or McBride within Washington. As such, attempted service upon Contec, Inc. and McBride by mail outside of Washington was insufficient under Washington law.

         South Carolina's Rules of Civil Procedure have similar provisions for personal delivery. A plaintiff can serve an individual defendant

by delivering a copy of the summons and complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy to an agent ...

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