United States District Court, D. Massachusetts
WILLIAM B. LOTT JR., Plaintiff,
KFORCE, INC., Defendant.
MEMORANDUM AND ORDER RE: DEFENDANT KFORCE, INC.'S
MOTION TO DISMISS THE COMPLAINT (DOCKET ENTRY # 9)
Marianne B. Bowler, United States Magistrate Judge.
before this court is a motion to dismiss filed by defendant
KForce, Inc. (“defendant”) under Fed.R.Civ.P. 12
(b) (5) (“Rule 12 (b) (5)”). (Docket Entry # 9).
Plaintiff William B. Lott Jr. (“plaintiff”)
opposes the motion. (Docket Entry # 17). After a hearing,
this court took the motion (Docket Entry # 9) under
October 18, 2018, plaintiff filed a pro se complaint raising
four causes of action against defendant: (1) racial
discrimination (Count I); (2) “unlawful retaliation
against an assertion of civil rights” (Count II); (3)
handicap discrimination (Count III); and (4) age
discrimination (Count IV). (Docket Entry # 1-1, pp. 5-8)
(capitalization omitted). The underlying facts involve
defendant's recission of a November 20, 2015 employment
offer hiring plaintiff for “a temporary position”
of a “Tier 1 Tech Support Specialist” at the Lynn
Community Health Center. (Docket Entry # 1-1, p. 3).
Plaintiff seeks $850, 000 in lost wages, lost benefits, and
pain and suffering. (Docket Entry # 1, p. 4).
October 24, 2018, this court allowed plaintiff leave to
proceed in forma pauperis and granted him permission to elect
to have service made by the United States Marshals Service
(“USMS”) within 90 days. (Docket Entry # 5). The
same day, the Clerk issued a summons for service of defendant
by USMS. (Docket Entry # 6).
November 2, 2018, plaintiff completed a service of process
form and provided the address for defendant as “Daniel
Muse KForce-Federal Reserve Building[, ] 600 Atlantic Ave[.,
] Boston[, ] Mass.” (Docket Entry # 7). On November 5,
2018, a “USMS Deputy or Clerk” acknowledged
receipt of the summons with the above-noted completed
address. (Docket Entry # 7). On November 19, 2018, a Deputy
United States Marshal (“DUSM”) attempted service.
(Docket Entry # 7). The DUSM who attempted service checked a
box on the Process Receipt and Return (“receipt”)
that reads, “I have executed as shown in
‘Remarks,' the process described on the individual,
company, corporation, etc., at the address shown above or on
the individual, company, corporation, etc., shown at the
address inserted below.” (Docket Entry # 7). The
“Remarks” section of the receipt includes mileage
and hours for the DUSM but no specific information about the
process served. (Docket Entry # 7). The name and title of the
“individual served” listed on the receipt is
“Kristina Rabuffo/Ops Coordinator.” (Docket Entry
Rabuffo (“Rabuffo”) is a field operations
coordinator and is “neither an officer of KForce nor
KForce's registered agent for service of process in
Massachusetts.” (Docket Entry # 12, p. 2) (Docket Entry
# 13, p. 1). Her main roles include monitoring consultant
satisfaction and time worked, distributing mail, ordering
office supplies (without approval under the amount of $500
and with approval over $500), and performing other
administrative tasks as needed. (Docket Entry # 13, p. 1). If
a consultant is not satisfied, Rabuffo is not authorized to
attempt resolution and instead must contact the relevant
recruiter. (Docket Entry # 13, p. 2). Rabuffo has never
negotiated contracts or supervised any other employees.
(Docket Entry # 13, p. 2). Before and on November, 19, 2018,
Rabuffo had never “received, seen, or heard of a
summons” and was “generally unfamiliar with the
concept and purpose of a summons.” (Docket Entry # 13,
receipt includes the DUSM's initials as opposed to the
DUSM's signature. (Docket Entry # 7). Where the form
designates “Signature of Authorized USMS Deputy or
Clerk” the box is initialed either “SC” or
“JL” and the box where the form indicates
“Signature of U.S. Marshal or Deputy, ” the box
is initialed “JL.” (Docket Entry # 7). The box
next to Rabuffo's name designating her as “[a]
person of suitable age and discretion then residing in the
defendant's usual place of abode” is not
checked. (Docket Entry # 7). The receipt shows that DUSM
attempted service at 10:24 a.m. on November 19, 2018. (Docket
Entry # 7).
December 10, 2018, defendant filed the motion to dismiss
pursuant to Rule 12 (b) (5) for insufficient service of
process. (Docket Entry # 9). On December 24, 2018, plaintiff
filed an opposition, stating that he would “have the
U.S. Marshals Service, re-service of process on the
[d]efendant again, with [s]pecial [i]nstructions to [s]erve
an officer, managing or general agent, or process agent
within the meaning of Rule 4 (h) (1) ([b]).” (Docket
Entry # 17). Accordingly, on December 26, 2018, approximately
two weeks after defendant filed the motion to dismiss and two
days after plaintiff filed his opposition, plaintiff
requested the USMS make another attempt at service. (Docket
Entry # 19, p. 1). Plaintiff completed another service of
process form and provided the address for defendant as
“Daniel Muse- KForce Inc[.] Federal Reserve Building[,
] 600 Atlantic Ave[., ] 18th Floor[, ] Boston[, ]
Mass[.]” (Docket Entry # 19, p. 1). In the
“special instructions” section of the form,
plaintiff specified “Daniel Muse-Managing
Director-617-368-6624 or some officer, managing or general
agent, or person authorized to accept service on behalf of
KForce pursuant to Fed.R.Civ.P. 4 (h) (1).” (Docket
Entry # 19, p. 1) (capitalization omitted). On December 28,
2018, a USMS Deputy or Clerk signed and acknowledged receipt
of the summons with the above-noted completed address and
special instructions. (Docket Entry # 19, p. 1).
attempted service on January 17, 2019. (Docket Entry # 19, p.
1). Defendant denied service and no signature or name appears
in the box designating the name and title of the individual
served. (Docket Entry # 19, p. 1). The DUSM checked the box
specifying that he or she was “unable to locate the
individual, company, corporation etc., named above (See
remarks below).” (Docket Entry # 19, p. 1). In the
“Remarks” section, the DUSM explained that he or
she spoke with “Rabuffo of KForce and she said Daniel
Muse no longer works there.” (Docket Entry # 19, p. 1).
motion to dismiss for improper service of process under
Fed.R.Civ.P. 12 (b) (5) challenges the ‘mode of
delivery.'” Connolly v. Shaw's
Supermarkets, Inc., 335 F.Supp.3d 9, 14 (D. Mass. 2018)
(internal citation omitted). “Rule 12 (b) (5) empowers
courts to dismiss a complaint for insufficient service of
process.” Evans v. Staples, Inc., 375
F.Supp.3d 117, 120 (D. Mass. 2019); Fed.R.Civ.P. 12 (b) (5).
“When a defendant challenges the sufficiency of process
under Rule 12 (b) (5), the plaintiff has ‘the burden of
proving proper service.'” Evans v. Staples,
Inc., 375 F.Supp.3d at 120 (quoting Lopez v.
Municipality of Dorado, 979 F.2d 885, 887 (1st Cir.
1992)). In adjudicating a Rule 12 (b) (5) motion to dismiss
for insufficiency of service, a court may “look beyond
the pleadings and may consider affidavits and other documents
to determine whether process was properly served”
including the two declarations (Docket Entry ## 12, 13) filed
by defendant. Cutler Assocs., Inc. v. Palace Constr.,
LLC, 132 F.Supp.3d 191, 194 (D. Mass. 2015).
“[A]ny factual ambiguities are to be resolved squarely
in the plaintiff's favor.” Id.
argues that service is insufficient because: (1) Rabuffo, the
person served on November 19, 2018, was not authorized to
receive service on behalf of defendant; and (2) the November
19, 2018 receipt provides insufficient details to demonstrate
that defendant received proper service of process as it was
not signed and did not detail the manner of service. (Docket
Entry ## 9, 22). Furthermore, defendant emphasizes that
plaintiff, in his opposition (Docket Entry # 17), concedes
that service of process on November 19, 2018 was improper.
Plaintiff maintains he elected to use the USMS to serve
defendant and the USMS “fail[ed] to serve the right
person” or an authorized agent and additionally
“failed to Process Receipt and Return.” (Docket
Entry # 17) (emphasis ...