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Lott v. Kforce, Inc.

United States District Court, D. Massachusetts

August 6, 2019

WILLIAM B. LOTT JR., Plaintiff,
v.
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.

         Pending 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 advisement.

         PROCEDURAL BACKGROUND

         On 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).

         On 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).

         On 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 # 7).

         Kristina 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, p. 2).

         The 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).

         On 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).

         A DUSM 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).

         STANDARD OF REVIEW

         “[A] 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.

         DISCUSSION

         Defendant 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 ...


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