Pieczynski v. Commonwealth Of Pennsylvania

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

PAUL PIECZYNSKI, :

Plaintiff : CIVIL ACTION NO. 22-2037

v. : (JUDGE MANNION)

COMMONWEALTH OF :

PENNSYLVANIA, et al.,

:

Defendants

:

ORDER

Before the court is the report of Judge Carlson recommending this

court dismiss Plaintiff’s case without prejudice for failure to make timely

service under Rule 4 of the Federal Rules of Civil Procedure. (Doc. 5).

Plaintiff brings this action seeking to enforce a curious $26,800,000

arbitration award he allegedly secured after “arbitrating” his sundry

Pennsylvania criminal convictions. (Doc. 1). Plaintiff moves this court to

confirm that award pursuant to the Federal Arbitration Act. The case was

referred to Judge Carlson, who recognized a gating procedural issue:

Plaintiff has not served the defendants. Judge Carlson entered an order

instructing Plaintiff he must serve the defendants. Plaintiff refused. So, Judge

Carlson recommends dismissal without prejudice under Rule 4. The court

agrees.

Plaintiff objects to Judge Carlson’s report. (Doc. 6). When objections

are timely filed to the report and recommendation of a magistrate judge, the

district court must review de novo those portions of the report to which

objections are made. 28 U.S.C. §636(b)(1); Brown v. Astrue, 649 F.3d 193,

195 (3d Cir. 2011). Although the standard is de novo, the extent of review is

committed to the sound discretion of the district judge, and the court may rely

on the recommendations of the magistrate judge to the extent it deems

proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing

United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, satisfy itself

that there is no clear error on the face of the record in order to accept the

recommendation. Fed.R.Civ.P. 72(b), advisory committee notes; see also

Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.

2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)

(explaining judges should give some review to every report and

recommendation)). Nevertheless, whether timely objections are made or not,

the district court may accept, not accept, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge. 28 U.S.C.

§636(b)(1); Local Rule 72.31.

“Before a federal court may exercise personal jurisdiction over a

defendant, the procedural requirement of service of summons must be

satisfied.” Omni Cap. Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104

(1987). “[S]ervice of summons is the procedure by which a court having

venue and jurisdiction of the subject matter of the suit asserts jurisdiction

over the person of the party served.” Id. (quoting Mississippi Publishing Corp.

v. Murphree, 326 U.S. 438, 444–445 (1946)). Service is a serious matter

flowing from the Due Process Clause of the Fifth Amendment to the United

States Constitution, which in relevant part provides, “No person . . . shall be

deprived of life, liberty, or property, without due process of law.” U.S. CONST.

AMEND. V.

The Federal Arbitration Act recognizes this; it requires the party

seeking district court confirmation of an award serve the adverse parties.

See 9 U.S.C. §9 (“Notice of the application shall be served upon the adverse

party, and thereupon the court shall have jurisdiction of such party[.]”)

(emphasis added). Moreover, the fact that Plaintiff’s case is more akin to a

“motion,” see Teamsters Loc. 177 v. United Parcel Serv., 966 F.3d 245, 255

(3d Cir. 2020), as opposed to a classic civil complaint does not rid Plaintiff of

his service obligations. Motions must be served too. See Fed. R. Civ. P.

5(a)(1)(D); M.D. Pa. Local R. 5.7.

“Today, service of process in a federal action is covered generally by

Rule 4 of the Federal Rules of Civil Procedure.” Omni Cap., 484 U.S. at 104.

Rule 4(m) requires the court dismiss the case without prejudice after notice

to the party who fails to serve process. Judge Carlson gave Plaintiff notice

of his duty to serve process. (Doc. 2). Plaintiff did not serve process, wrongly

asserting he has no such obligation. Thus, Rule 4(m) requires the court

dismiss this case without prejudice.

Plaintiff’s objections to Judge Carlson’s report discuss the merits of his

arbitration and the arbitration process generally, but they do nothing to show

error in Judge Carlson’s recommendation of dismissal without prejudice for

failure to serve process. The court agrees with the sound reasoning that led

Judge Carlson to his conclusion in the report. Thus, Plaintiff’s objections are

OVERRULED; the report, (Doc. 5), is ADOPTED IN ITS ENTIRETY;

Plaintiff’s case is DISMISSED without prejudice; the Clerk of Court is directed

to CLOSE this case.

S/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: June 26, 2023

22-2037-01