United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
Louay M. Awadh (“Awadh”) has filed this lawsuit
pro se against Defendant Tourneau, Inc.
(“Tourneau”) alleging violations under 42 U.S.C.
§ 1981 (“§ 1981”), Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. (“Title VII”), the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq., the Age Discrimination in Employment Act
(“ADEA”), and the Family and Medical Leave Act
(“FMLA”). D. 1 ¶¶ 2-3. Tourneau further
construes Awadh's complaint to allege claims against
Tourneau pursuant to Mass. Gen. L. c. 151B and Mass. Gen. L.
c. 149, § 100. D. 17. Tourneau has moved to dismiss
under Fed.R.Civ.P. 12(b)(5) as to all of the claims for
failure of service of process and Fed.R.Civ.P. 12(b)(6) as to
some of the claims. D. 17. Awadh has filed a motion for
default judgment. D. 20. For the reasons stated below, the
Court DENIES Tourneau's motion to dismiss without
prejudice, D. 17, and DENIES Awadh's motion for default
judgment, D. 20.
Standard of Review
the sufficiency of process is challenged under Rule 12(b)(5),
plaintiff bears ‘the burden of proving proper
service.'” Morales v. Spencer, 52
F.Supp.3d 362, 365 (D. Mass. 2014) (quoting Lopez v.
Municipality of Dorado, 979 F.2d 885, 887 (1st Cir.
1992)). While a return of service is generally accepted as
prima facie evidence that service was validly
performed, a defendant can provide other evidence to attempt
to refute any presumption of valid service. Id.
(citing Blair v. City of Worcester, 522 F.3d 105,
111-12 (1st Cir. 2008)).
Factual Background and Procedural History
December 1, 2015, Awadh filed a complaint against Tourneau.
D. 1. The complaint alleges violations under § 1981,
Title VII, the ADA, the ADEA, and the Family and Medical
Leave Act. D. 1 ¶ 3. On that same day the Court
issued a summons for service by Awadh on Tourneau. D. 4.
Thereafter, on December 10, 2015, Awadh filed a “Proof
of Summons Delivery” in which he stated that he
“personally served the summons and a copy of the
complaint on Tourneau's Counselor, Attorney Matthew D.
Freeman, Esq., via U.S. Postal Service.” D. 8 at 1. On
or around December 9, 2015, Freeman sent Awadh a letter
indicating that he was not authorized to accept service on
behalf of Tourneau. D. 19 ¶ 8; D. 21 ¶ 9. Awadh
received this letter on December 19, 2015, D. 21 ¶ 9,
and then mailed a summons and complaint to Tourneau's CEO
Ira Melnitsky (“Melnitsky”) via certified mail on
December 22, 2015. D. 21 ¶ 11. Awadh also mailed a
summons and complaint to Tourneau's Chairman Robert
Wexler (“Wexler”) via certified mail. D. 21
¶ 12. On May 26, 2016, Tourneau filed a motion to
dismiss. D. 17. Later that same day, Awadh filed proof of
service in which he indicated that he mailed summons and
copies of the complaint to Melnitsky and Wexler. D. 21. Also
on May 26th, Awadh filed a motion for default
judgment against Tourneau. D. 20. The Court heard the parties
on the pending motion to dismiss and took the matter under
advisement. D. 33.
Tourneau's Motion to Dismiss Pursuant to Fed.R.Civ.P.
a federal court may exercise personal jurisdiction over a
defendant, the procedural requirements of service of process
must be satisfied.” Aly v. Mohegan Council-Boy
Scouts of Am., No. 08-cv-40099-FDS, 2009 WL 3299951 at
*1 (D. Mass. Apr. 20, 2009) (citing Omni Capital
Int'l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97,
104 (1987)). Where Tourneau challenges service of process
pursuant to Rule 12(b)(5), Awadh has the burden of proving he
effected proper service. Cichocki v. Massachusetts Bay
Cmty. Coll., No. 15-cv-10663-JGD, 2016 WL 1239236, at *3
(D. Mass. Mar. 29, 2016) (citing Aly, 2009 WL
3299951, at *2).
Awadh Did Not Provide Sufficient Service of Process Under
argues that Awadh never provided effective service of process
because Awadh first provided a complaint and summons to
defense counsel via certified mail, D. 19 ¶¶ 6-8,
and then sent the same to Tourneau's chairman and chief
executive officer via certified mail, D. 18 at 6.
4(c) requires that a summons be served with a copy of the
complaint, and that the plaintiff is responsible for having
the summons and complaint served within the time frame
allotted under Rule 4(m). Fed. R. Civ. P 4(c)(1); Fed. R.
Civ. P 4(m). Rule 4(c) also requires that the individual
serving the complaint and summons is not a party to the
litigation. Fed.R.Civ.P. 4(c)(2). Rule 4(h) explains how a
corporation, like Tourneau, must be served. That rule
provides that “[u]nless federal law provides otherwise
or the defendant's waiver has been filed, ” a
corporation must be served within any judicial district of
the United States in the manner prescribed by Rule 4(e)(1)
for serving an individual or by delivering a copy of the
summons and complaint to an officer, a managing or general
agent, or any other agent authorized by appointment or by law
to receive service of process and-if the agent is one
authorized by statute and the statute so requires-by also
mailing a copy of each to the defendant. Fed.R.Civ.P.
4(h)(1)(A). Rule 4(e)(1) states that proper service includes
“following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where
the district court is located or where service is
made.” Effective December 1, 2015, Rule 4(m) provides
that “[i]f a defendant is not served within 90 days
after the complaint is filed, the court . . . must dismiss
the action without prejudice against that defendant or order
that service be made within a specified time.”
Fed.R.Civ.P. 4(m); Cichocki, 2016 WL 1239236, at *5
did not properly effect service of process upon Tourneau. A
plaintiff cannot complete service of process via certified or
registered mail. Payne v. Massachusetts, No.
09-cv-10355-PBS, 2010 WL 5583117, at *3 (D. Mass. Nov. 18,
2010), report and recommendation adopted, No.
09-cv-10355, 2010 WL 5583111 (D. Mass. Dec. 10, 2010);
Aly, 2009 WL 3299951, at *2; Periyaswamy v.
Perot Sys. Healthcare, No. 11-cv-11406-PBS, 2012 U.S.
Dist. LEXIS 12983, at *5-6 (D. Mass. Jan. 13, 2012). Here,
Awadh acknowledges that he tendered service via certified
mail, D. 8; D. 15; D. 21 ¶¶ 5, 11; D. 27 at 2-3,
which does not constitute proper service of process.
did not provide proper service of process for an additional
reason: Awadh himself cannot serve Tourneau. Rule 4 requires
that service be completed by “[a]ny person who is at
least 18 years old and not a party” to the litigation.
Fed.R.Civ.P. 4(c)(2); see Payne, 2010 WL 5583117, at
*3 (quoting Fed.R.Civ.P. 4(c)(2)); Periyaswamy, 2012
U.S. Dist. LEXIS 12983, at *5-6. In this case, ...