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Sanders v. Callender

United States District Court, D. Maryland

June 29, 2018




         Presently pending and ready for resolution in this civil rights case is the motion to dismiss filed by Defendants Desiree Callender and Desiree Callender & Associates, Realtors LLC (collectively the “Callenders”) (ECF No. 71) and the motion to dismiss filed by Defendant Prince George's County (the “County”) (ECF No. 62). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motions to dismiss will be granted.

         I. Background

         A complete recitation of Plaintiffs' case can be found in the court's prior memorandum opinion. (ECF No. 58). In short, Plaintiffs' home was foreclosed on in June 2010, and a lawful writ of possession was issued. The writ was executed on May 6, 2014. (Id. at 2). According to the complaint, the Callenders called the police on that day to have Plaintiff Sanders evicted and falsely reported that he was armed and dangerous in order “to embarrass, burden, threaten, [and] intimidate” Plaintiffs (ECF No. 2 ¶ 27-H), the County used excessive and unnecessary force in executing the eviction (Id. ¶¶ 27-J, 27-K), and Defendant Gomez Towing damaged Plaintiffs' cars towing them out of the garage. (Id. ¶ 27-S).

         On April 24, 2017, Plaintiffs brought suit alleging seven state tort claims and a violation of 42 U.S.C. § 1983 against a variety of entities involved in the eviction. The County and Callenders filed motions to dismiss. On January 9, 2018, the court dismissed the state law claims against the County but not the § 1983 claim.[1] (ECF No. 58). On February 16, the County moved to dismiss the § 1983 claim arguing that Plaintiffs had failed to identify a policy or practice which caused a constitutional deprivation, and, thus, the County could not be held liable in its supervisory capacity. (ECF No. 62-1, at 4). Plaintiffs were provided with Roseboro notices which advised them of the pendency of the motion to dismiss and their entitlement to respond within seventeen (17) days from the date of the letter. (ECF Nos. 64, 65); see Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (holding pro se plaintiffs should be advised of their right to file responsive material to a motion for summary judgment).

         Plaintiffs did not respond within the required time period. Instead, on May 7, Plaintiffs filed a “Notice of Errata” alleging that they had not received a memorandum of law and requested “an Order in confirmation of this Notice to quiet the issue improperly brought to the bench[.]” (ECF No. 75). The next day the County filed a response asserting that there had been no errors but, nonetheless, sent a second copy of its motion and the memorandum of authority. (ECF No. 76). Plaintiffs have still not responded.

         In its prior opinion, the court also initially dismissed the claims against Defendants Callenders and Defendant Gomez Towing for improper service. (ECF No. 58). Plaintiffs filed a motion to reconsider explaining their efforts in attempting service and submitted proposed summons. The court granted the motion to reconsider, vacated the dismissal, and issued summons for Defendants Callenders and Gomez Towing. (ECF No. 67). On March 7, Ilona D. Turner gave a copy of the summons to the receptionist for Defendants Callenders' counsel.[2] (ECF No. 70). On March 29, Defendants Callenders moved to dismiss for improper service (ECF No. 71-1), and Plaintiffs responded (ECF No. 74).

         II. Service of Process

         Defendants Callenders move to dismiss pursuant to Rule 12(b)(5). When the defense challenges service, “the plaintiff bears the burden of establishing the validity of service pursuant to Rule 4.” O'Meara v. Waters, 464 F.Supp.2d 474, 476 (D.Md. 2006); see also Fed.R.Civ.P. 4. “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.” Id. (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.

         Under Rule 4, service can be made by

doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

         Rule 4(e)(2). As explained in the prior opinion, service can also be made in Maryland “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 - show to whom, date, address of delivery.'” Md.Rules, Rule 2-121(a); see Rule 2-124(b) (allowing service to be made on an agent authorized to receive service of process).

         Here, Plaintiffs did not attempt to serve via certified mail or by serving Defendant Callender, personally. Instead, they had someone serve Defendants Callenders' attorney's receptionist. The attorney's receptionist is not an agent authorized to receive service, and a law office is not a “place of abode.” Accordingly, service of process has not been made.

         Plaintiffs filed this case over a year ago. Service has still not been completed even though multiple summonses have been issued. Plaintiffs' continued disregard for the rules makes this case distinguishable from those where it is appropriate to quash service rather than dismiss the case. See, e.g., Ngabo v. Le Pain Quotidien, No. DKC 11-0096, 2011 WL 978654, at *2 (D.Md. Mar. 17, 2011) (“Where ‘the first service of process is ineffective, a motion to dismiss should not be granted, but rather the Court should treat the motion in the alternative, as one to quash the service of process.'”) (quoting Vorhees v. Fischer & Krecke, 697 F.2d 574, 576 (4th Cir. 1983)). Not only have Plaintiffs disregarded the rules, but the prior opinion explicitly laid ...

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