United States District Court, D. Maryland
MAURLANNA BRAXTON, et al.
KENNETH ATONIO JACKSON, et al
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE
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.
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.
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).
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
Motion for Clerk’s Entry of Default
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.”“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).
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.
Motions to Dismiss
Standards of Review
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 (4th 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
(4th 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 (4th Cir. 2005).
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
(4th Cir. 1963); Armco, Inc. v.
Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089
(4thCir. 1984)). The “plain requirements for
the means of effecting service of process, ” however,
“may not be ignored.” Armco, 733 F.2d at
12(b)(5) Failure of Service
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).
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 (4th 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).
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.
Consideration of Exhibits and Conversion to Summary
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 ...