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Awadh v. Tourneau, Inc.

United States District Court, D. Massachusetts

February 17, 2017

LOUAY AWADH, Plaintiff,
v.
TOURNEAU, INC., Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff 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.[1] 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.

         II. Standard of Review

         “When 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)).

         III. Factual Background and Procedural History

         On 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.[2] 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.

         IV. Tourneau's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(5)

         “Before 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).

         A. Awadh Did Not Provide Sufficient Service of Process Under Rule 4

         Tourneau 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.

         Rule 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 n.2.

         Awadh 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.

         Awadh 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, ...


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