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Escalante v. Tobar Construction, Inc.

United States District Court, D. Maryland

January 3, 2019

ISAIAS ESCALANTE, et al., Plaintiffs
v.
TOBAR CONSTRUCTION, INC. Defendant

          MEMORANDUM OPINION

          PAULA XINIS, UNITED STATES DISTRICT JUDGE

         Pending 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 motions.

         I. Background

         Tobar 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. Id.

         On 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.

         Initially, 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.

         On the 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.

         Tobar 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.

         II. Timeliness of Service

         For 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)).

         Rule 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).

         Tobar, 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 ...


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