Lott v. K. Force

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

WILLIAM B. LOTT JR.,

Plaintiff,

v. CIVIL ACTION NO.

18-12182-MBB

KFORCE, INC.,

Defendant.

MEMORANDUM AND ORDER RE:

DEFENDANT KFORCE, INC.’S

MOTION TO DISMISS THE COMPLAINT

(DOCKET ENTRY # 9)

August 6, 2019

BOWLER, U.S.M.J.

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 US 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 omitted). Additionally, plaintiff

proposed a plan, which he has since executed, to have the USMS

“re-service process” with special instructions regarding Rule

4(h)(1)(B). (Docket Entry # 17).

I. Authority to Receive Service of Process

Federal Rule of Civil Procedure Rule 4(h) (“Rule 4(h)”),

addresses service of process on a corporation:

Under Rule 4(h), a litigant may serve a corporation “(1) by

following the state law process 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 . . . , or (2) delivering a copy of the summons and

the complaint to an officer, a managing or general agent,

or any other agent authorized by appointment or by law to

receive service of process.”

Ayele v. Delta Airlines, Inc., Civil Action No. 18-10617-DJC,

2018 WL 6001021, at *3 (D. Mass. Nov. 15, 2018) (quoting Leung

v. Citizens Bank, Civil Action No. 12-11060-FDS, 2013 WL

1992453, at *2 (D. Mass. May 10, 2013) (citing Fed. R. Civ. P.

4(h)). In Massachusetts, a similar rule, Mass. R. Civ. P.

4(d)(2), governs service of process on a corporation. It allows

service:

by delivering a copy of the summons and of the complaint to

an officer, to a managing or general agent, or to the

person in charge of the business at the principal place of

business thereof within the Commonwealth, if any; or by

delivering such copies to any other agent authorized by

appointment or by law to receive service of process . . ..

Mass. R. Civ. P. 4(d)(2) (emphasis added).

Neither plaintiff nor defendant argue that Rabuffo is

either an “officer” or an “agent authorized by appointment or by

law to receive service of process” under the federal or the

Massachusetts rule. In any event, the facts do not support such

an argument. In no uncertain terms, Tammi Franzese, a senior

paralegal at KForce who is “familiar with KForce’s corporate

structure, the identity of its officers, and the identity of its

registered agent for service of process in Massachusetts,”

confirmed that Rabuffo is “neither an officer of KForce nor

KForce’s registered agent for service of process in

Massachusetts.” (Docket Entry # 12). Rabuffo is also not a

“person in charge of the business” within the meaning of Mass.

R. Civ. P. 4(d)(2). She lacks any managerial authority and is

simply a field operations coordinator. (Docket Entry ## 12,

13).

Therefore, the issue reduces to whether she is a “managing

or general agent” within the meaning of Rule 4(h)(1)(B) or Mass.

R. Civ. P. 4(d)(2). Whether an individual is “a managing or

general agent” is determined by “a factual analysis of that

person’s authority within the organization.” Egan v. Tenet

Health Care, 193 F. Supp. 3d 73, 83-84 (D. Mass. 2016)

(addressing both Rule 4(h)(1) and Mass. R. Civ. P. 4(d)(2)).

Generally, a managing or general agent “will have broad

executive responsibilities” and perform duties “‘sufficiently

necessary’ to the corporation’s operations.” Id. (internal

citations omitted).

In Zond, the court analyzed a receptionist’s authority

within the organization and found that, although she had

knowledge of what to do with the papers, she was not

“particularly integral” to the company and was therefore not

authorized to receive service. Zond, LLC v. Fujitsu

Semiconductor Ltd., 53 F. Supp. 3d 394, 398 (D. Mass. 2014)

(addressing Rule 4(h)). Indeed, “[c]ourts have repeatedly held

that a receptionist does not ordinarily qualify as a

corporation’s agent.” Carey Int’l Inc. v. Carey Limo Serv.

Inc., Civil Action No. 10-12142-MLW, 2011 WL 9819989, at *1 (D.

Mass. Sept. 22, 2011).

Here, the USMS served Rabuffo on November 19, 2018.

(Docket Entry # 7). Rabuffo’s title is “Field Operations

Coordinator.” (Docket Entry # 13, p. 1). Her main roles

include monitoring time, distributing mail, ordering office

supplies, and general administration. (Docket Entry # 13, p.

1). She lacks supervisory authority over other employees and

has no executive power to solve employee disputes. (Docket

Entry # 13, p. 2). She is not permitted to spend more than $500

on behalf of the company without supervision. (Docket Entry #

13, p. 2). Before and on November 19, 2015, Rabuffo had never

“heard of a summons” and was unfamiliar with the “concept.”

(Docket Entry # 13, p. 2).

Simply stated, Rabuffo’s professional tasks do not

constitute “broad executive responsibilities” sufficient to

support characterizing her as a managing or general agent. See

Egan v. Tenet Health Care, 193 F. Supp. 3d at 84. She did not

understand the “concept” of a summons and therefore did not have

either the knowledge of “what to do with the papers” or the

authority to receive service. See Zond, LLC v. Fujitsu

Semiconductor Ltd., 53 F. Supp. 3d at 397-98; (Docket Entry #

13, p. 2). In sum, the facts uniformly establish that Rabuffo

is not a “managing or general” agent and is not “authorized to

receive . . . service of process” for the purposes of either

Rule 4(h) or Mass. R. Civ. P. 4(d)(2). See Ayele v. Delta

Airlines, Inc., 2018 WL 6001021, at *3. Hence, the November 19,

2018 service is insufficient.

II. Sufficiency of Receipt and Fed. R. Civ. P. 4(m)

Plaintiff is proceeding pro se and in forma pauperis, and

opted to have process served by the USMS. The receipt provided

by the USMS after the November 19, 2018 attempt provides

insufficient detail to allow plaintiff to meet his burden of

proving proper service. See generally Evans v. Staples, Inc.,

375 F. Supp. 3d at 120 (it is plaintiff’s burden to prove proper

service). In fact, as defendant points out, the receipt is not

properly signed by the DUSM and, in addition, does not state

that service was “‘personally served’” but instead notes that

service was “‘executed.’” (Docket Entry ## 7, 9). Plaintiff

acknowledges that the receipt is insufficient to show that

defendant was properly served. (Docket Entry # 17).

More to the point, service remains insufficient as fully

discussed in Roman numeral I. Federal Rule of Civil Procedure

4(m) (“Rule 4(m)”) allows an extension of the time to serve a

prospective defendant under certain circumstances. In

particular, “If a defendant is not served within 90 days after

the Complaint is filed, the court—on motion or on its own after

notice to the plaintiff—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). However,

“[t]he ‘court must extend the time for service of process if

there is good cause shown for the delay.’” Evans v. Staples,

Inc., 375 F. Supp. 3d at 120 (quoting Riverdale Mills Corp. v.

United States Dep’t of Transp. Fed. Aviation Admin., 225 F.R.D.

393, 395 (D. Mass 2005)). “‘The dismissal of a complaint is an

inappropriate exercise of . . . discretion when there exists a

reasonable prospect that service may yet be obtained.’” Forward

Fin. LLC v. Moss Supermarket LLC, 303 F. Supp. 3d 209, 211 (D.

Mass. 2018) (quoting Cutler Assocs., Inc. v. Palace Constr.,

LLC, 132 F. Supp. 3d at 194).

“While ignorance of procedural rules is ordinarily no

excuse for improper service, courts have recognized certain

exceptions for plaintiffs proceeding pro se or in forma

pauperis.” Connolly v. Shaw’s Supermarkets, Inc., 335 F. Supp.

3d at 15 (emphasis added); see Edwards v. Bertucci’s Italian

Rest., Civil Action No. 13-10604-FDS, 2013 WL 5012705, at *3 (D.

Mass. Sept. 11, 2013) (holding plaintiff’s service of process

was “clearly deficient” but allowing him “one final opportunity

to effect service of process” as he was pro se and therefore

“unfamiliar with service procedures”). “[T]he First Circuit has

held that a pro se plaintiff proceeding in forma pauperis shows

good cause when the Marshals fail to meet their obligations.”

Boyd v. Rue, Civil Action No. 09-10588-MLW, 2010 WL 3824106, at

*1 (D. Mass. Sept. 27, 2010) (emphasis omitted). “So long as a

plaintiff ‘provides the information necessary to identify the

defendant, courts have uniformly held that the Marshals’ failure

to effect service automatically constitutes good cause within

the meaning of Rule 4(m).” Id. (quoting Ruddock v. Reno, 104 F.

App’x 204, 206-07 (2d Cir. 2004) (unpublished)).

Here, there is sufficient good cause. Plaintiff provided

the name and address of defendant. The DUSM nevertheless failed

to effectuate service within the allotted 90-day time period.

(Docket Entry ## 7, 19). Plaintiff is therefore afforded up to

and including October 23, 2019 to effectuate service.

CONCLUSION

For the foregoing reasons, the motion to dismiss (Docket

Entry # 9) is DENIED without prejudice and plaintiff is afforded

up to and including October 23, 2019 to accomplish service of

the summons and complaint on defendant. The Clerk shall re-

issue a summons, which plaintiff shall complete and provide the

USMS. The USMS shall serve the summons, complaint, and this

Order on defendant in the manner directed by plaintiff.

/s/ Marianne B. Bowler________

MARIANNE B. BOWLER

United States Magistrate Judge