United States District Court, D. Maryland
PATRICIA M. VARIEUR, Plaintiff,
BIS GLOBAL, Defendant.
Xinis United States District Judge
September 9, 2016, Plaintiff Patricia Varieur, then appearing
pro se, brought this action against her former
employer, BIS Global, for employment discrimination pursuant
to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e-2000e-17. See ECF No. 1. She
served Defendant BIS Global on October 1st and filed her
proof of service on October 24th. See Summons, ECF
No. 6. The proof of service states that Plaintiff served the
summons on John Scalia, Senior Counsel at Pillsbury Winthrop
Shaw Pittman LLP, via a FedEx package sent to the firm's
Washington, D.C. office. Id. Plaintiff also sent
copies of the summons via FedEx to Philip Schmitz and Michael
Socarras who are, according to Plaintiff, BIS Global's
Chief Operating Officer and General Counsel, respectively.
These copies were sent to BIS Global's headquarters in
McLean, Virginia. Id. Plaintiff retained counsel
shortly after filing her proof of service.
October 26, 2016, BIS Global's counsel filed a motion to
quash service of process or, in the alternative, to dismiss
the complaint for lack of personal jurisdiction, improper
venue, insufficient process, and insufficient service of
process under Rules 12(b)(2), (3), (4), and (5) of the
Federal Rules of Civil Procedure. ECF No. 8. On January 9,
2017,  Plaintiff submitted an “Amended
Initial Response to Motion to Quash.” ECF No. 43.
However, Plaintiff failed to address the validity of the
attempted service of process, focusing only on
Defendant's challenges to personal jurisdiction and
venue. Plaintiff's service of process, however, is indeed
insufficient. Thus, BIS Global's motion to quash is
granted, and all remaining grounds for dismissal are denied
without prejudice to refile should Plaintiff properly
re-serve BIS Global.
defendant challenges service of process, “the plaintiff
bears the burden of establishing the validity of service
pursuant to Rule 4” of the Federal Rules of Civil
Procedure. O'Meara v. Waters, 464 F.Supp.2d 474,
476 (D. Md. 2006); see also Fed. R. Civ. P. 4(1)(1).
“Generally, when service of process gives the defendant
actual notice of the pending action, the courts may construe
Rule 4 liberally to effectuate service and uphold the
jurisdiction of the court.” O'Meara, 464
F.Supp.2d at 476 (citing Karlsson v. Rabinowitz, 318
F.2d 666, 668 (4th Cir. 1963); Armco, Inc. v.
Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089
(4th Cir. 1984)). The “plain requirements for the means
of effecting service of process, ” however, “may
not be ignored.” Armco, 733 F.2d at 1089.
4(h) of the Federal Rule of Civil Procedure governs the
service of a corporation within the United States. Here,
Plaintiff attempted to serve BIS Global by mail. Rule 4 does
not directly provide for service by mail, but does authorize
service upon a corporation by any means allowed by the state
where the district court is located or the state where
service is to be effected. See Fed R. Civ. P.
4(h)(1)(A). Plaintiff brought her action in Maryland,
attempted to serve Scalia in the District of Columbia, and
mailed copies of the summons to Schmitz and Socarras at BIS
Global's headquarters in McLean, Virginia. Accordingly,
the Court will consider the law for service in each of these
Maryland Rules permit service on corporations, such as BIS
Global, in person, by mail, or, in some circumstances,
through substituted service upon the State Department of
Assessments and Taxation (“SDAT”). See
Md. Rule 2-121(a), 2-124(d), 2-124(o). Generally, a
corporation's “resident agent, president,
secretary, or treasurer” is authorized to accept
service. Md. Rule 2-124(d). If a corporate defendant
“has no resident agent, or if a good faith attempt to
serve the resident agent, president, secretary, or treasurer
has failed, service may be made by serving the manager, any
director, vice president, assistant secretary, assistant
treasurer, or other person expressly or impliedly authorized
to receive service of process.” Id.
by mail is effectuated “by mailing to the person to be
served a copy of the summons, complaint, and all other papers
filed with it by certified mail, ” requesting
“Restricted Delivery, ” i.e., “show[ing] to
whom, date, [and] address of delivery.” Md. Rule
2-121(a)(3). Alternatively, a plaintiff may serve a
corporation by leaving copies of the summons and complaint
with the SDAT if “(i) the corporation has no resident
agent; (ii) the resident agent is dead or no longer at the
address for service of process maintained with the [SDAT]; or
(iii) two good faith attempts on separate days to serve the
resident agent have failed.” Md. Rule 2-124(o).
District of Columbia also allows service by mail in certain
circumstances. Under D.C. Superior Court Civil Rule 4,
service of a person or corporation may be effectuated by
“mailing a copy of the summons, complaint and initial
order to the person to be served by registered or certified
mail, return receipt requested.” See D.C.
Super. Ct. R. Civ. P. 4(c)(3), (h)(1). If service is
accomplished by mail, an affidavit of service must set forth
specific facts demonstrating that the signatory is qualified
to accept service on behalf of the corporation. D.C. Super.
Ct. R. Civ. P. 4(1)(2). This requirement mirrors Federal Rule
of Civil Procedure 4(1), which instructs that the person
effecting service of the summons and complaint must notify
the court, through an affidavit, that he or she has served
the defendant. Fed.R.Civ.P. 4(1).
attempt at serving Mr. Scalia was deficient under both
Maryland and District of Columbia law. As an initial matter,
Plaintiff has not proved that Mr. Scalia is authorized to
accept service on behalf of the corporation. Further, even if
Mr. Scalia were authorized, the method of service fails to
meet either Maryland's or the District of Columbia's
service-by-mail requirements. The FedEx receipts attached to
Plaintiff's proof of service show that Plaintiff did not
request “restricted delivery” as Maryland law
requires, but instead requested “direct signature
required, ” which allows FedEx to leave a package with
whomever signs for it, regardless of whether that person the
intended recipient. Not surprisingly, therefore, the
signatory on the summons meant for Scalia is a
“DBRAWNER” while the signatory for the summonses
sent to Socarras and Schmitz is “PMUMMADI.”
See, e.g., Mallard v. MV Transp., Inc., No.
DKC 11-2997, 2012 WL 642496, at *5 (D. Md. Feb. 27, 2012)
(“Plaintiff must show . . . any basis [she] has for
believing that the person who signed for delivery was an
appropriate individual to accept service under Rule
2-124.”). With regard to D.C. law, Plaintiff failed to
swear via affidavit that Scalia was served the complaint
itself even if he was authorized to accept service.
Accordingly, service on Scalia was insufficient.
also arguably attempted to serve process on Philip Schmitz
and Michael Socarras by sending a summons to BIS Global's
headquarters in Mclean, Virginia. That attempt was deficient
under Maryland law for the same reasons discussed above. The
service also did not meet Virginia's requirements for
service on a corporation. Section 8.01 of the Virginia Code
provides in pertinent part:
§ 8.01-299 How process served on domestic corporations
Except as prescribed in § 8.01-300 as to municipal and
quasi-governmental corporations, and subject to §
8.01-286.1, process may be served on a corporation created by