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Lee v. Hagerstown Goodwill Industries, Inc.

United States District Court, D. Maryland

April 14, 2017

DORIAN LEE, Plaintiff,
v.
HAGERSTOWN GOODWILL, INDUSTRIES, INC., Defendant.

          MEMORANDUM ORDER

          Richard D. Bennett, United States District Judge

         Plaintiff Dorian Lee (“plaintiff” or “Lee”), a transgender, African-American woman, has filed a four-count Complaint against defendant Hagerstown Goodwill Industries, Inc. (“defendant” or “HGI”), Lee's former employer, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e, et seq., and the “Maryland Human Rights Act”[1] alleging, inter alia, discrimination on the basis of sex and race. (ECF No. 1 at ¶ 8.)

         Now pending before this Court is defendant HGI's Motion to Dismiss (“Defendant's Motion”) pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure[2] based on plaintiff's failure to timely serve process on defendant. (ECF No. 5.) The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, Defendant's Motion (ECF No. 5) is DENIED.

         BACKGROUND

         Plaintiff Dorian Lee is an African-American transgender woman who resides in Hagerstown, Washington County, Maryland. (ECF No. 1 at ¶ 8.) Defendant HGI is a Maryland corporation operating under the tradename “Horizon Goodwill Industries, ” and has a primary place of business in Hagerstown, Washington County, Maryland. (Id. at ¶ 9.)

         HGI hired plaintiff into a job training program from August 20, 2014 through January 16, 2015. (ECF No. 1 at ¶ 11.) Plaintiff alleges that she was continually harassed by HGI employees based on her gender identity. (Id. at ¶ 14.) Ms. Lee applied for a number of permanent and temporary positions with HGI, but was not hired for any of those positions. (Id. at ¶ 19.) Plaintiff alleges that that she was not hired due to her status as an African-American transgender woman and her perceived failure to conform to gender stereotypes. (Id. at ¶¶ 27, 32.)

         As required under Title VII, plaintiff filed a timely Charge of Discrimination against HGI with the Equal Employment Opportunity Commission (“EEOC”) on February 20, 2015.[3] (ECF No. 1 at ¶ 6.) Plaintiff's Charge was then referred to the Maryland Commission on Civil Rights. (Id.) The EEOC dismissed plaintiff's Charge and issued her a Right-to-Sue Letter on February 5, 2016. (ECF No. 1-1.)

         Plaintiff timely filed her Complaint in this Court on May 5, 2016. (ECF No. 1.) A Summons was issued on May 26, 2016. (ECF No. 4.) On February 9, 2017, defendant's resident agent, Kirk C. Downey, Esq., spoke with plaintiff's counsel and agreed to accept service on behalf of HGI. (Downey Aff., ECF No. 5 at 4, ¶ 3.) Plaintiff served the Summons on Mr. Downey on February 21, 2017. (Id. at ¶ 4.)

         STANDARD OF REVIEW

         Under Federal Rule of Civil Procedure 4(m), a plaintiff is required to serve process on the defendant within ninety (90) days after the Complaint is filed. Fed.R.Civ.P. 4(m). This rule further provides that if a plaintiff fails to timely serve process on the defendant, “the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Id. However, “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id. A party may move to dismiss a Complaint for insufficient service of process pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(5).

         ANALYSIS

         It is undisputed that plaintiff failed to timely serve process on defendant. (ECF No. 8 at ¶ 1.) Plaintiff provides no explanation whatsoever for this failure, but urges the Court, in its discretion, to extend time for service. (Id. at ¶ 3) (citing Henderson v. United States, 517 U.S. 654, 658 n.5, 116 S.Ct. 1638, 1641 n.5 (1996)). In its Reply, defendant argues that binding precedent and several decisions of this Court mandate dismissal of plaintiff's Complaint. (ECF No. 9 at 2) (citing Mendez v. Elliott, 45 F.3d 75 (4th Cir. 1995)).

         While defendant cites numerous cases of this Court in support of its position, defendant omits the decision of Chief Judge Blake in Hammad v. Tate Access Floors, Inc., in which this Court noted that “the Fourth Circuit stands alone in holding that Rule 4(m) does not permit a district court to grant the plaintiff a discretionary extension of time to effect service of process, ” and concluded that “Mendez is no longer good law and that, if given the opportunity, the Fourth Circuit perforce would adopt the interpretation of Rule 4(m) held by the Supreme Court and the other circuit courts.” Hammad v. Tate Access Floors, Inc., 31 F.Supp.2d 524, 527-28 (D. Md. 1999).

         Indeed, the procedural meanderings of this Court's more recent decision in Chen v. Mayor & City Council of Baltimore, suggest that there is support for Chief Judge Blake's position in Hammad. In Chen, this Court dismissed the pro se plaintiff's Complaint pursuant to Rule 12(b)(5). Chen v. Mayor & City Council of Baltimore, GLR-11-3227, 292 F.R.D. 288, 290 (D. Md. Feb. 22, 2013). The United States Court of Appeals for the Fourth Circuit affirmed Chen by an unpublished, per curiam opinion. 546 F. App'x 187 (4th Cir. 2013). The United States Supreme Court then granted certiorari to review the Fourth Circuit's decision. Chen v. Mayor & City Council of Baltimore, Maryland, 135 S.Ct. 475, 190 L.Ed.2d 355 (2014). When petitioner failed to file a timely brief, however, the Supreme Court dismissed the writ of certiorari. Chen v. Mayor & City Council of Baltimore, Maryland, 135 S.Ct. 939, 190 L.Ed.2d 718. A petition for rehearing was also denied. Chen v. Mayor & City Council of Baltimore, Md., 135 S.Ct. 1485, 191 L.Ed.2d 422 (2015). As a sister court of the Fourth ...


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