Opinion
1:22-CV-00292-SPB-RAL
12-20-2023
LISA L. COWLEY DAVIS, JONATHAN H. DAVIS, Plaintiffs v. NATIONAL CREDIT ADJUSTERS, LLC; CBM SERVICE INC.; STAFFORD GROUP ASSOCIATES; AND STARMARK FINANCIAL, LLC, Defendants
SUSAN PARADISE BAXTER, United States District Judge
REPORT AND RECOMMENDATION ON PLAINTIFFS' FAILURE TO SERVE STARMARK FINANCIAL, LLC
ECF NOS. 34, 38, 39
RICHARD A. LANZILLO, CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that all claims against Defendant Starmark Financial, LLC be dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m) based on Plaintiffs Lisa L. Cowley Davis and Jonathan H. Davis's failure to serve them.
II. Report
A. Introduction and Procedural History
Plaintiffs Lisa L. Cowley Davis and Jonathan H. Davis commenced this action by filing a Summons with Notice and Complaint in the Court of Common Pleas of Erie County, Pennsylvania, against four Defendants, including Starmark Financial, LLC, on August 25, 2022. The action was removed to this Court on October 10, 2022. See ECF No. 1. To this date, Starmark Financial, LLC has not responded to the Summons with Notice and no party has entered an appearance on its behalf.
Upon review of the county record, it appears that prior to removal, a copy of the Summons with Notice was sent to each Defendant at the addresses provided by the Plaintiff. See ECF No. 1-1. From this record, the Court observed that the Summons with Notice assigned to Starmark Financial, LLC was improperly addressed. Accordingly, the Court issued an order on June 1, 2023, ordering Plaintiffs to effectuate service on or before June 16, 2023. The Court instructed them that
service upon STARMARK FINANCIAL, LLC must be addressed to either: “an officer”; “partner or trustee of the corporation or similar entity”; “the manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity”; “a manager or general agent”; “or any other agent authorized by appointment or by law to receive service of process.”ECF No. 34. See Fed.R.Civ.P. 4(h)(1)(B); 231 Pa. Code Rule 424. See also Fed.R.Civ.P. 4(h). The Court noted that failure to comply would result in dismissal for failure to serve pursuant to Fed.R.Civ.P. 4(m).
When Plaintiffs failed to respond by October 11, 2023, the Court entered a show cause order again advising them that their continuing failure to submit service papers would result in dismissal of the Defendant. See ECF No. 11. On November 16, 2023, the Court issued Plaintiffs a final show cause order that again warned them of Defendant's possible dismissal if they failed to respond. See ECF No. 86.
The Court's orders remain unanswered, and Starmark Financial, LLC remains unserved.
B. Standard of Review
Federal Rule of Civil Procedure 4(m) directs a district court-on motion or on its own after notice to the plaintiff-to dismiss an action without prejudice if a plaintiff fails to serve a defendant within ninety days of the filing of the complaint. This rule also “requires a district court to extend time [for service] if good cause is shown ...” Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995). The Third Circuit generally “equate[s] ‘good cause' with the concept of ‘excusable neglect' of Federal Rule of Civil Procedure 6(b)(2), which requires ‘a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.'” MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995), cert. denied, 519 U.S. 815 (1996) (citing Petrucelli, 46 F.3d at 1312) (Becker, J., concurring in part and dissenting in part).
C. Discussion
In this case, Plaintiffs have failed to demonstrate good cause for their failure to serve Starmark Financial, LLC within 90 days of the filing of the Complaint. Plaintiffs have not responded to the Court's orders directing them to serve this Defendant and their pro se status alone does not excuse their failure to timely serve. See Orantes v. USP-Lewisburg Food Adm'r, 2020 WL 3001394, at *1-2 (M.D. Pa. June 3, 2020) (citing Veal v. United States, 84 Fed.Appx. 253, 256 (3d Cir. 2004)). The absence of any reasonable explanation for Plaintiffs' failure to timely serve the Summons with Notice and Complaint precludes a finding of good cause to further extend the time to do so. See Lanza v. Moclock, No. 3:19-CV-2137, 2020 WL 4574495, at *8 (M.D. Pa. Aug. 7, 2020) (“Based upon the lack of any reasonable explanation for his failure to adhere to the requirements of Rule 4, the Court finds that Lanza failed to establish good cause.”). Dismissal of this action as to Defendant Starmark Financial, LLC is therefore warranted under Fed.R.Civ.P. 4(m).
A pro se plaintiff approved for in forma pauperis status pursuant to 28 U.S.C. § 1915 is entitled to issuance and service of process so long as he provides sufficient information to the Court to effectuate service. See 28 U.S.C. § 1915(d); Bailey v. Nelnet Student Loan Servicer, 2023 WL 3250683, at *1 (W.D. Pa. Feb. 10, 2023). The plaintiff is responsible for properly identifying all defendants and providing accurate mailing addresses or other service information for them. See id.; Harris v. McMullen, 609 Fed.Appx. 704, 707 (3d Cir. 2015) (“While [in forma pauperis] status confers an entitlement to issuance and service of process, see 28 U.S.C. § 1915(d) and Fed.R.Civ.P. 4(c)(3), the plaintiff must provide sufficient information for the court to do so.”) (citing Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993)). It appears that Plaintiffs were granted IFP status before the state court prior to the removal of this action. Whether this entitled them to court service of the complaint and summons pursuant to § 1915(d) is unclear. Even if it did, however, Plainitffs never provided the Court with information sufficient to allow it to serve Starmark Financial, LLC.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that the claims against Defendant Starmark Financial, LLC be dismissed without prejudice and that this Defendant be terminated from this action.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto.
See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may waive appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).