Braxton v. Jackson

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE

         Presently pending in this retaliation case are: (1) motion for clerk’s entry of default filed by Plaintiffs Maurlanna Braxton, Stephanie Gamble and Brittany Scott (collectively, “Plaintiffs”) on October 16, 2018 (ECF No. 14); (2) motion to dismiss filed by Defendant Kenneth Jackson (ECF No. 15); (3) motion to attach missing exhibits filed by Defendant Jackson (ECF No. 17); (4) motion to dismiss filed by Defendant Dione Rodman (ECF No. 18); and (5) motion for alternative service filed by Plaintiff Braxton. The issues have been briefed (ECF No. 19), and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Plaintiffs’ motion for clerk’s entry of default will be granted in part and denied in part; Defendant Jackson’s motion to dismiss will be granted in part and denied in part; Defendant Rodman’s motion to dismiss will be granted in part and denied in part; Defendant Jackson’s motion to attach missing exhibits will be denied; and Plaintiffs’ motion for alternative service will be granted.

         I. Background^[1]

         In a separate legal action before the United States District Court for the District of Maryland, filed on December 1, 2015, Plaintiffs alleged violations of the Fair Labor Standards Act (“FLSA”) and Maryland Wage Payment and Collection Act (“MWPCA”) by Eldorado Lounge, Inc., Four One Four, LLC, and Defendant Jackson. (ECF No. 3). According to Plaintiffs, Defendant William Sheppard filed individual retaliatory lawsuits against Plaintiffs Braxton, Gamble, and Scott in state court. (Id.). Plaintiffs also allege that Defendant Jackson filed individual retaliatory lawsuits against Plaintiffs Braxton and Gamble in state court. (Id.).

         As a result, Plaintiffs filed a complaint on June 27, 2018, alleging retaliation under the Fair Labor Standards Act and Maryland Wage and Hour Law, abuse of process and malicious use of process under common law, and civil conspiracy. (ECF No. 1). Plaintiffs’ initial complaint named three defendants: William Sheppard, Kenneth Jackson, and Jane Doe. (Id.). Plaintiffs filed an amended complaint on July 16, 2018, substituting Dione Rodman (“Ms. Rodman”) as defendant Jane Doe. (ECF No. 3).

         Plaintiffs filed a motion for alternative service as to Defendants Sheppard and Jackson on September 17, 2018, seeking permission to serve Defendants Sheppard and Jackson via U.S. mail at 4100 East Lombard Street and 416 East Baltimore Street, respectively. (ECF No. 7). The motion was denied on September 17, 2018. (ECF No. 9). Plaintiffs filed a second motion for alternative service as to Defendants Sheppard and Jackson on September 18, 2018, renewing their request to serve Defendants Sheppard and Jackson via U.S. mail at 4100 East Lombard Street and 416 East Baltimore Street, respectively. (ECF No. 10). The motion was granted on September 18, 2018. Plaintiffs filed a motion to permit pre-scheduling conference discovery as to Defendant Rodman on September 17, 2018, seeking approval to ascertain Defendant Rodman’s address by beginning discovery early and issuing a subpoena to one of the attorneys involved in a prior case, Mr. Russell A. Neverdon, Sr., Esq. (ECF No. 8). Plaintiffs’ motion was denied on October 3, 2018. (ECF No. 13).

         II. Motion for Clerk’s Entry of Default

         Under Federal Rule of Civil Procedure 55(a), “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.”^[2]“It is axiomatic that service of process must be effective under the [Fed.R.Civ.P.] before a default . . . may be entered against a defendant.” Md. State Firemen’s Ass’n v. Chaves, 166 F.R.D. 353, 354 (D.Md. 1996). Plaintiff bears the burden of establishing that service of process was effective. Ayres v. Ocwen Loan Servicing, LLC, 129 F.Supp.3d 249, 261 (D.Md. 2015).

         Plaintiffs seek clerk’s entry of default against Defendants Sheppard and Jackson, arguing that “neither Defendant has responded to the [c]omplaint.” (ECF No. 14, at 2). Because Defendant Jackson has now “plead[ed] or otherwise defend[ed, ]” Mr. Sheppard is the only Defendant that could be subject to a clerk’s entry of default. In support of their motion, Plaintiffs state that they served Defendant Sheppard “via U.S. [m]ail, [f]irst [c]lass, [p]ostage [p]repaid sent to 416 E. Baltimore Street, Baltimore, MD 21202[.]” (Id., at 2). This form of alternative service was authorized by the court, and, accordingly, the clerk will be directed to enter Defendant Sheppard’s default.

         III. Motions to Dismiss

         A. Standards of Review

         The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4^th Cir. 2006). A plaintiff’s complaint need only satisfy the standard of Rule 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). A court must consider all well-pleaded allegations in a complaint as true, see Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe factual allegations in the light most favorable to the plaintiff, see Lambeth v. Bd. of Comm’rs of Davidson Cnty., 407 F.3d 266, 268 (4^th Cir. 2005). Nevertheless, a court is not required to accept as true “a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Finally, while courts generally should hold pro se pleadings “to less stringent standards than formal pleadings drafted by lawyers, ” they may nevertheless dismiss complaints that lack a cognizable legal theory or that fail to allege sufficient facts under a cognizable legal theory. Haines v. Kerner, 404 U.S. 519, 520 (1972); Turner v. Kight, 192 F.Supp.2d 391, 398 (D.Md. 2002), aff’d, 121 F.App’x. 9 (4^th Cir. 2005).

         When a defendant moves to dismiss pursuant to Rule 12(b)(5), “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 (4^th Cir. 1963); Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4^thCir. 1984)). The “plain requirements for the means of effecting service of process, ” however, “may not be ignored.” Armco, 733 F.2d at 1089.

         B. Defendant Jackson

         1. 12(b)(5) Failure of Service

         Defendant Jackson argues that because Plaintiffs failed to serve him at 4100 East Lombard Street, Baltimore, MD, or to justify service after the 90 day period allotted in Fed.R.Civ.P. 4, this case should be dismissed for insufficient service of process. (ECF No. 15, at 5). On September 18, 2018, this court granted Plaintiffs’ motion to permit alternative service to Defendant Jackson at that exact address. (ECF No. 11; ECF No. 10, at 4). Plaintiffs subsequently filed an affidavit of service stating that Plaintiffs’ counsel had “personally prepared and sent a copy of the summons, complaint, and motions submitted in this matter via U.S. Mail, First Class, Postage Prepaid to the follow: Kenneth Jacskon[, ] 4100 East Lombard Street[, ] Baltimore, MD 21224[.]” (ECF No. 12). Defendant Jackson challenges the court-approved method of service as insufficient and seeks dismissal on that ground. (ECF No. 15, at 5-10).

         The parties dispute whether Mr. Jackson actually received the first class mailing at 4100 East Lombard Street. Id. Undisputed, of course, is the fact that Mr. Jackson received actual notice of this case, as evidenced by his filings. “When the process gives the defendant actual notice of the pendency of the action, the rules, in general, are entitled to a liberal construction.” Armco, 733 F.2d at 1089. The Fourth Circuit has stressed both the need for liberal application of service rules, id., as well as the fact that “the rules are there to be followed[.]” Vorhees v. Fischer & Krecke, 697 F.2d 574, 576 (4^th Cir. 1983). Plaintiffs have followed the rules and Defendant Jackson has received notice – allegedly by the very means that he has suggested Plaintiffs use. Cf Broad. Music, Inc. v. 100 Wisteria, Inc., 2011 WL 3667221, at *2 (D. Md. Aug. 19, 2011); McManus v. Harborside Properties, LLC, 2017 WL 5153097, at *2 (Md. Ct. Spec. App. Nov. 7, 2017).

         Defendant Jackson also attacks the basis for the court’s order allowing alternative service, suggesting that Plaintiffs’ counsel essentially lied about efforts to serve Jackson. (ECF No. 15, at 6-7). Even accepting these allegations as true, however, dismissal – the only relief Mr. Jackson has requested – is not warranted. Jackson “has not argued that maintenance of the suit would be prejudicial, ” Miller v. Baltimore City Bd. Of School Com’rs, 833 F.Supp.2d 513, 519 (D.Md. 2011) nor has he suggested a lack of actual notice, Syncrude Canada Ltd. V. Highland Consulting Group, Inc., 916 F.Supp.2d 620, 627 (D.Md. 2013) (“this Court has previously held that actual notice in some instances cures technical violations of Rule 4”). Accordingly, Defendant Jackson’s motion to dismiss for failure of service will be denied.

         2. Consideration of Exhibits and Conversion to Summary Judgment

         Defendant Jackson submitted new documents in support of his motion to dismiss, including: (1) a letter dated January 29, 2017 from Plaintiffs’ lawyer, Kenneth C. Gauvey (“Mr. Gauvey”), to Defendant Jackson that states Plaintiffs’ demand ...