United States District Court, D. Maryland
KENNETH SANDERS, et al.
DESIREE CALLENDER, et al.
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.
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.
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).
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. (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).
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.
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. (ECF No. 70). On March 29, Defendants
Callenders moved to dismiss for improper service (ECF No.
71-1), and Plaintiffs responded (ECF No. 74).
Service of Process
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.
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.
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).
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.
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