United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge.
Mulsanne Management. LLC brings this action against Defendant
Claude Tshimanga regarding Defendant's alleged failure to
comply with the terms of a home improvement contract. ECF No.
1. Now pending before the Court are Defendant's
"Motion for Case Dismissal, " ECF No. 8, and
Plaintiff's Request for Clerk's Entry of Default, ECF
No. 11. No hearing is necessary. Loc. R. 105.6 (D. Md. 2016).
For the following reasons. Defendant's Motion to Dismiss
and Plaintiff's Request for Clerk's Entry of Default
will both be denied.
2, 2016. Plaintiff commenced the instant case, bringing six
Maryland common law and statutory claims against Defendant
stemming from Defendant's alleged failure to complete a
housing improvement project. See generally ECF No.
1. A summons was issued by the Clerk's Office shortly
thereafter, on June 15. 2016. ECF No. 2. but Plaintiff failed
to promptly serve Defendant with a copy of the summons and
complaint. Thus, on October 31. 2016, the Court issued an
Order requiring Plaintiff to show good cause why the case
should not be dismissed. ECF No. 5. Plaintiff submitted a
detailed response on November 9, 2016, explaining that,
between June 29, 2016 and July 13. 2016, Plaintiff had
attempted to serve Defendant six times at the only address
then known to Plaintiff. 14301 Bellona Road. Apt A.
Woodbridge. Virginia 22191. ECF No. 6 ¶ 1. Plaintiff
stated that subsequent investigation revealed ten additional
addresses for Defendant in Georgia and Virginia and that a
summons was presently "out for service*' at what
they had determined to be Defendant's "most likely
address, " 14304 Jefferies Road. Woodbridge. Virginia,
22191. Id. ¶ 2. Finding that Plaintiff had
shown good cause for the delay, the Court extended the
deadline for Plaintiff to serve Defendant until January 31,
2017. ECF No. 7.
to an affidavit of service filed by a process server, on
December 16. 2016. a copy of the summons and complaint was
served upon David Tshimanga. who acknowledged that he was
Defendant's son, that Defendant resided at the Jefferies
Road property and that he himself also resided there. ECF No.
January 30. 2017. Defendant filed a document captioned
"Defendant's Motion for Case Dismissal." ECF
No. 8. In his motion. Defendant requested that the Court
dismiss the case without prejudice due to improper service,
or, in the alternative, provide him with a 45-day extension
of time to seek legal counsel. Id. at
Regarding the issue of service, Defendant s:ated that
Plaintiff knew his correct address and phone number due to
their prior business relationship. which he indicated was a
different apartment at the same Bellona Road address listed
on the initial summons. Id. Defendant characterized
Plaintiffs statements in their response to the Court's
Show Cause Order as "an attempt to mislead the
Court" and stated that he '"found the summons
by chance as it was placed under the matt [sic] in front of
his door." Id. at 1. Defendant further
argued that "Plaintiff would not be able to provide any
material proof of sufficient service of process."
Id. Notably. Defendant did not mention when he
discovered the summons under his mat, nor did he reference
Plaintiffs service of the summons and complaint on his son at
the Jefferies Road property on December 16, 2016.
February 6, 2017, Plaintiff filed their Response in
Opposition to Defendant's Motion to Dismiss, arguing that
Defendant had not provided sufficient grounds for dismissal,
but that Plaintiff would be amenable to a "brief*
extension of time to allow Defendant to file a responsive
pleading. ECF No. 10 at 3.
February 22, 2017, Plaintiff filed the presently pending
Request for Clerk's Entry of Default. ECF No. 11. In
their request, they reiterated that Defendant was served on
December 16. 2016, but asserted that no responsive pleading
was ever filed, characterizing Defendant's motion on
January 30. 2017 as solely a request for an extension of
time. Id. ¶¶ 2-3. 5. Plaintiff also
certified that a copy of their Request for Clerk's Entry
of Default was emailed and mailed to Defendant at the
addresses listed on his motion. Id. at 2. To date,
Defendant has not submitted any additional filings to the
Court reads Defendant's pending motion as combining a
Rule 12(b)(5) Motion to Dismiss due to Improper Service of
Process with a Motion for Extension of Time. Thus, despite
Plaintiffs statement in their Motion for Clerk's Entry of
Default, Defendant has filed a responsive pleading in this
case. Because Plaintiff served Defendant on December 16,
2016, his responsive pleading was due 21 days later on
January 6, 2017. See Fed. R. Civ. P. 12(a)(1)(A)(i).
Therefore, Defendant's motion, filed on January 30. 2017.
was filed late. However, in their Response in Opposition to
Defendant's Motion to Dismiss. Plaintiff generally
consented to Defendant's request for an extension of
time. Although Plaintiff did not view it as such, by the time
Plaintiff filed their Response in which they consent to the
extension, Defendant had already filed a responsive pleading
in the form of a Rule 12(b)(5) Motion to Dismiss. Thus, in
the Court's view. Plaintiff response signified their
consent to Defendant's late filing of the responsive
pleading. Therefore, and keeping in mind the Fourth
Circuit's "strong preference that... claims and
defenses be disposed of on their merits" Colleton
Preparatory Acad., Inc. v. Hoover Universal Inc., 616
F.3d 413. 417 (4th Cir. 2010). the Court holds that
Defendant's January 30. 2017 motion constitutes a
responsive pleading, and thus. Plaintiffs Motion for
Clerk's Entry of Default, ECF No. 11. shall be denied.
next to the merits of Defendant's Motion to Dismiss, the
Court finds that Plaintiff submitted sufficient evidence for
the Court to conclude that they properly served Defendant on
December 16. 2016. and therefore. Defendant's Motion to
Dismiss will be denied.
service is contested under Federal Rule of Civil Procedure
12(b)(5), the plaintiff "bears the burden of
establishing the validity of service pursuant to [Federal]
Rule [of Civil Procedure] 4." O 'Meara v.
Waters, 464 F.Supp.2d 474, 476 (D. Md. 2006) (citation
omitted). "Generally, when service of process gives the
defendant actual notice of the pending action, the courts may
construe Rule 4 liberally." Id. But, the
"plain requirements for the means of effecting service
may not be ignored." Id.
Rule of Civil Procedure 4(e) governs process of service for
cases brought in federal court. It states, in relevant part,
that an individual may be served by "leaving a copy of
[the summons and the complaint] at the individual's
dwelling or usual place of abode with someone of suitable age
and discretion who resides there..." Fed.R.Civ.P.
4(e)(2)(B). If service is completed by someone other than a
United States Marshal, an affidavit from the server must be
submitted to the Court as proof of service. Fed.R.Civ.P.
4(1)(1). Here. Plaintiff has submitted an affidavit of
service from their process server, attesting that on December
16. 2016, he served a copy of the summons and complaint upon
David Tshimanga, who acknowledged that he was Defendant's
son. that Defendant resided at the Jefferies Road property
and that he himself also resided there. ECF No. 9. The
affidavit also stated that David Tshimanga was between the
ages of 46 and 50, id., which the Court finds is a
suitable age to receive service of process. A process
server's affidavit constitutes prima facie evidence of
valid service, which the defendant may rebut through
convincing evidence such as an affidavit. See 5B
Charles Alan Wright & Arthur R. Miller, Fed. Prac. &
Proc. Civ. §1353 (3d ed. 2004); see also Ngabo v. Le
Pain Quotidkn, No. CTV.A. DKC 11-0096, 2011 WL 978654,
at *2 (D. Md. Mar. 17, 2011) (discussed in the context of
proper service under Maryland law). Here, Defendant does not
submit anything to rebut Plaintiffs assertion of valid
service on his son. Instead, Defendant argues that he was
never personally served and that he only "found the
summons by chance as it was placed under the matt [sic] in
front of his door." ECF No. 8 at 1. While personal
service is one way in which Plaintiff could have served
Defendant, see Fed. R. Civ. P. 4(e)(2)(A). their
selection of a different, valid, method of service does not
make their service ineffective. Because Defendant has not
submitted any evidence to rebut Plaintiffs proof of valid
service. Defendant's Motion to Dismiss shall be denied.