United States District Court, D. Maryland
Richard D. Bennett, United States District Judge
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” alleging, inter alia,
discrimination on the basis of sex and race. (ECF No. 1 at
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 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.
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
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.)
required under Title VII, plaintiff filed a timely Charge of
Discrimination against HGI with the Equal Employment
Opportunity Commission (“EEOC”) on February 20,
2015. (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.)
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.)
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).
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)).
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.
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 ...