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Ayres v. Jacobs & Crumplar

November 1, 1996

CAROLINE P. AYRES,

PLAINTIFF-APPELLANT,

v.

JACOBS & CRUMPLAR, P.A.; ROBERT JACOBS, INDIVIDUALLY AND AS AN AGENT/SENIOR PARTNER; THOMAS C. CRUMPLAR, INDIVIDUALLY AND AS AN AGENT/SENIOR PARTNER; DOUGLAS B. CANFIELD, INDIVIDUALLY AND AS AN AGENT/SENIOR PARTNER,

DEFENDANTS-APPELLEES.



On Appeal from the United States District Court for the District of Delaware

D.C. Civil Action No. 94-cv-00658

Before: Nygaard, Roth, and Rosenn, Circuit Judges

Rosenn, Circuit Judge.

Submitted Under Third Circuit LAR 34.1(a) September 20, 1996

Filed November 1, 1996

OPINION OF THE COURT

This appeal presents basic but serious questions pertaining to essential procedures to obtain personal jurisdiction over defendants in a civil action filed in a federal district court. The issues raised not only pertain to the sufficiency of the process to obtain personal jurisdiction but also to the effective service of process. The United States District Court for the District of Delaware dismissed the complaint and directed the Clerk to enter judgment for the defendants. The plaintiff timely appealed. We affirm.

I.

Caroline P. Ayres, the plaintiff, has been a licensed Delaware attorney since 1984. Jacobs & Crumplar, P.A., a Wilmington, Delaware law firm, employed her as an associate from December 1988 until August 1993 when they terminated her. On December 7, 1994, the plaintiff filed a complaint pro se, challenging the termination of her employment by the defendants, Jacobs & Crumplar, and its individual partners. *fn1 She did not request the Clerk of the Court to issue a signed summons with a seal of the court affixed thereto, but she obtained copies of summonses, filled in the name and address of defendants, and on December 29, 1994, she had a process server agency serve the complaints and the unsigned summons on each of the defendants. Service was accomplished by the process server by leaving the documents with the office manager, Donna Dobbs, of Jacobs & Crumplar. The plaintiff duly filed proofs of service.

On January 18, 1995, the defendants filed their answer and moved to dismiss under Federal Rules of Civil Procedure (Fed. R. Civ. P.) 12(b)(4) and (5). The court initially denied the motion because the defendants failed to support it with a brief as required by the Local Rules. The parties then proceeded with discovery. On July 31, 1995 (within the September 12, 1995 deadline fixed by the court for depositive motions), the defendants renewed their motion to dismiss, this time filing a supporting brief as required by the Local Rules. The court stayed discovery and granted the defendants' motion to dismiss.

In their motion, the defendants move to dismiss on two separate and distinct grounds. First, they claim a deficiency in process due to the plaintiff's failure to obtain the Clerk's signature on the summonses and to have the seal of the court affixed. Second, they maintain that the office manager at Jacobs & Crumplar had no authority to accept service on behalf of a professional association or the individuals and the service, therefore, was defective. The district court concluded that the plaintiff had provided no excuse for her failure to comply with the Rule relating to service "other than the fact that she simply did not think the `technical niceties' of service of process important." The court found that "such disregard for the Rules is inexcusable. Under the circumstances, the court can find no justification for permitting an amendment to the summons or for extending the deadline for service." The court further found that the defendants had not waived their service and process defenses and dismissed the action. The plaintiff timely appealed. *fn2

II.

On appeal, the plaintiff reiterates the arguments she submitted to the district court. In substance, she contends that the court erred in not finding that the defendants had waived all claims to failed process and that she had made a good faith effort to serve the defendants. She asserts that she had effectuated valid service on the individual defendants by serving them "at their usual place of abode, their law firm," and that the court erred in not finding that service upon the professional association was perfected by serving its office manager. She further contends that the district court erred in not granting leave for reservice upon the defendants and in not following the general rule that Fed. R. Civ. P. (4)(m) requires dismissal only where there is a complete lack of service on the defendant.

Fed. R. Civ. P. 4(h)(1) requires that service on a corporation be to "an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process . . . ." In this case, the documents were delivered to the firm's office manager; the plaintiff does not dispute ...


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