United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. SARIS CHIEF UNITED STATES DISTRICT JUDGE.
reasons set forth below, this action is dismissed without
prejudice for failure to serve pursuant to Fed.R.Civ.P. 4(m).
Friedrich Lu initiated this action on March 31, 2017 by
filing a complaint concerning an incident that occurred eight
days earlier outside of the Suffolk County House of
Correction. See Docket No. 1. The complaint names as
defendants four correctional officers and the Suffolk County
Sheriff's Department. Id. With the complaint,
plaintiff filed a motion for temporary restraining order and
preliminary injunction. See Docket No. 2. Plaintiff
paid the $400.00 filing fee and the Clerk issued summonses.
See Docket Nos. 5, 6. Plaintiff's emergency
motion was denied. See Docket No. 7.
3, 2017, plaintiff moved for default. See Docket No.
10. Plaintiff avers that he “sent processes for all
defendants to general counsel via the certified mail on Apr 3
previous.” Id. In an effort to explain why he
served the general counsel by mail, plaintiff states that in
a 2015 action, the general counsel for the Suffolk County
Sheriff's Department had agreed to accept service by mail
in Lu v. Dalton, et al., C.A. No. 15-13349-GAO.
Id. With his motion for default, plaintiff attaches
a copy of the 9/16/15 email in which the general counsel
agreed to accept service of plaintiff's 2015 complaint by
certified mail. Id.
25, 2017, the Court denied plaintiff's request for
default because Lu had not met his burden of proving timely
and proper service of process. See Docket No. 11. At
that time, the 90 day period had not yet expired for service
of the summonses, which were issued on March 31, 2017.
response to the Court's May 25, 2017 Order, plaintiff
explained that the defendants “had been properly served
with process” and that it would be “superfluous
to serve them again with the same.” See Docket
Order dated August 31, 2017, the Court found that, despite
plaintiff's argument to the contrary, he failed to meet
his burden of proving timely and proper service of process as
required by Fed.R.Civ.P. 4(1)(1). Plaintiff was ordered to
show cause why this case should not be dismissed for failure
to serve pursuant to Fed.R.Civ.P. 4(m).
before the Court is plaintiff's timely show cause
response. See Docket No. 15. In his one-page
response, plaintiff directs the Court to “[r]ead his
(plaintiff's) lips: Defendants were properly served with
process, and the court's personal jurisdiction
attaches.” Id. at ¶ 2. Plaintiff argues
that “all defendants should have been defaulted”
because “none of them filed an ‘affidavit denying
agency.'” Id. at ¶ 3.
properly serve the individual defendants, they must be served
personally, at their homes, or via an agent authorized to
accept service on their behalf in their individual
capacities. See Fed.R.Civ.P. 4(e). As to the Suffolk County
Sheriff's Department, a party is required to (1) deliver
“a copy of the summons and of the complaint to its
chief executive officer” and (2) serve “a copy of
each in the manner prescribed by that state's law for
serving a summons or like process on such a defendant.”
Fed.R.Civ.P. 4(j) (2). The Massachusetts Rules of Civil
Procedure requires that, to effect service on any agency of
the Commonwealth, the plaintiff must deliver a copy of the
summons and the complaint to “the Boston office of the
Attorney General of the Commonwealth, and ... to [the
agency's] office or to its chairman or one of its members
or its secretary or clerk.” Mass. R. Civ. P. 4(d) (3).
plaintiff states that he sent the summonses by certified mail
to the general counsel for the Suffolk County Sheriff's
Department. Plaintiff is mistaken in his contention that the
general counsel is now required to receive service of process
in the instant action simply because he agreed to accept
service by mail in an earlier action. Despite plaintiff's
argument to the contrary, he has not demonstrated that he
properly effectuated service. See Donnelly v. UMass Corr.
Med. Program, No. 09-11995-RGS, 2010 WL 1924700, at *1
(D. Mass. May 11, 2010) (when attempting to effect service
pursuant to 4(e)(C), “the agent served must possess the
authority to accept service on behalf of the
defendant.”). Here, there is no indication that any of
the defendants had authorized the general counsel to accept
service on their behalf. Accordingly, this action is subject
to dismissal without prejudice.
on the foregoing, it is hereby ordered that this action is
dismissed without prejudice for failure to serve pursuant to
Fed.R.Civ.P. 4(m). The ...