United States District Court, D. Maryland
XINIS, UNITED STATES DISTRICT JUDGE
before the Court is Defendant Tobar Construction, Inc.'s
(“Tobar”) Motion to Dismiss (ECF No. 4) and its
supplemental motion. ECF No. 16. The motions are fully
briefed, and no hearing is necessary. See Loc. R.
105.6. For the following reasons, the Court denies the
employed Plaintiffs Isaias Escalante, Carlos Escalante, and
Ignacio Maldonado to assist in the construction of the MGM
Resort Casino at National Harbor. ECF No. 12 ¶ 1.
Pursuant to the Project Manual issued by the General
Contractor, Tobar required Plaintiffs to report to Rosecroft
Raceway, rather than to the construction site. Id.
¶¶ 2, 28. Every morning, Plaintiffs waited in line
for a bus to take them from the Raceway to the construction
site. Id. ¶ 2. Likewise, at the end of each
shift, Tobar required Plaintiffs to wait in line for a bus to
take them back to the Raceway. Id. During the
travel, Plaintiffs each carried twenty pounds of tools.
Id. Tobar did not allow Plaintiffs to park at, or
otherwise be transported to and from, the construction site.
Id. This was the case even though each Plaintiff
lived closer to the construction site than they did the
Raceway. Id. ¶ 53, 63, 74. Altogether,
Plaintiffs spent between 1.5 and 2 hours each shift either
waiting or traveling by bus between the Raceway and the
construction site. Id. ¶ 4. Tobar never
compensated Plaintiffs for any of the mandated travel time.
April 5, 2018, Plaintiffs filed suit on behalf of themselves
and a putative class of Tobar employees, alleging violations
of the Maryland Wage Payment and Collection Law
(“MWPCL”), Md. Code, Lab. & Empl. §
3-501, et seq.; the Maryland Wage and Hour Law
(“MWHL”), Md. Code, Lab. & Empl. §
3-401, et seq.; and the common law doctrine of
unjust enrichment. ECF No. 1. Plaintiffs did not serve Tobar
until August 8, 2018. ECF No. 7.
Plaintiffs' counsel calendared service for 60 days after
filing the Complaint, so as to monitor a similar case pending
in Circuit Court for Prince George's County, Maryland
that involved a different subcontractor at the construction
site. Plaintiffs had been contemplating amendment to the
Complaint in this case based on the outcome of the Prince
George's Circuit Court case. ECF No. 19 at 7-8.
61st day, Plaintiffs asked the Clerk to reissue the summons.
ECF No. 3. When a new summons did not issue, a relatively
inexperienced administrative assistant from Plaintiffs'
counsel's law firm discussed this matter with an
individual in the Clerk's Office. The Clerk's Office
told the assistant that “summonses never expire.”
ECF No. 19-3 ¶ 4. The assistant misconstrued the
significance of that statement, and effectively took it to
mean that no deadline existed to serve the Complaint.
Id. ¶ 5. Accordingly, the assistant did not
calendar any further deadline by which the Complaint had to
be served. Id. Because of this error, Plaintiffs
served Tobar 34 days after the time under Rule 4(m) had
elapsed. ECF No. 7.
thereafter moved to dismiss for untimely service of process,
lack of jurisdiction, and failure to plead damages with
specificity. ECF No. 4. In response, Plaintiffs amended their
Complaint to include a claim under the federal Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201,
et seq. ECF No. 12. Tobar filed a supplemental
motion to dismiss, which mirrored, in large part, its
original motion but also argued that Plaintiffs' FLSA
claim is barred by the statute of limitations. ECF No. 16.
The Court addresses each argument in turn.
Timeliness of Service
motions to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(5), “the plaintiff bears the burden of
establishing the validity of service.” O'Meara
v. Waters, 464 F.Supp.2d 474, 476 (D. Md. 2006). The
court may construe Rule 4 liberally if service gave the
defendant “actual notice of the pending action.”
Id. “Nevertheless, ‘the rules [of
service] are there to be followed, and plain requirements for
the means of effective service of process may not be
ignored.” Jackson v. Warning, No. PJM 15-1233,
2016 WL 520947, at *2 (D. Md. Feb. 5, 2016) (quoting
Armco, Inc. v. Penrod-Slauffer Bldg. Sys., Inc., 733
F.2d 1087, 1089 (4th Cir. 1984)).
4(m) states in pertinent part that:
If a defendant is not served within 90 days after the
complaint is filed, 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. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m).
in seeking dismissal, relies principally on the United States
Court of Appeals for the Fourth Circuit in United States
v. Mendez, to argue that dismissal is warranted because
Plaintiffs cannot demonstrate good cause to excuse untimely
service. The Court in Mendez, interpreting an
earlier iteration of Rule 4(m), held that the rule compelled
dismissal for untimely service “absent a showing of
good cause.” Mendez v. Elliot, 45 F.3d 75, 78
(1995). This Court is not convinced that
Mendez compels the outcome that Tobar seeks. Cf.
Hansan v. Fairfax Cty. Sch. Bd., 405 ...