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Francis v. Joint Force Headquarters National Guard

October 7, 2008

JANET FRANCIS, PLAINTIFF,
v.
JOINT FORCE HEADQUARTERS NATIONAL GUARD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jerome B. Simandle United States District Judge

OPINION

SIMANDLE, District Judge

This matter is before the Court upon Defendants' motions for a more definite statement [Docket Item 49] and to dismiss the individually named Defendants for failure to serve process [Docket Item 58], and Plaintiff's motion for the entry of default [Docket Item 55]. As the following discussion indicates, while this case is more than two years old, Plaintiff has yet in her pleadings to set forth sufficient facts for Defendants to file a responsive pleading. For the reasons set forth herein, the Court will grant Defendants' motion for a more definite statement, deny without prejudice Defendants' motion to dismiss the individually named Defendants, and deny Plaintiff's motion seeking the entry of default.

I. BACKGROUND

A. Facts

Plaintiff Janet Francis, who filed this lawsuit pro se but for whom pro bono counsel has recently been appointed, is a former federal military technician with the New Jersey Army National Guard. She filed this lawsuit on October 11, 2005, naming as Defendants the Joint Force Headquarters National Guard (the "National Guard"), the Department of the Army, and a number of individuals whom the Court assumes are members of the New Jersey National Guard.*fn1 (Am. Compl. at 1.)

Plaintiff's Complaint and Amended Complaint contain almost no factual allegations, but her claims appear to center around allegedly discriminatory and otherwise unlawful employment actions taken by Defendants. The paragraph of the Amended Complaint entitled "Cause of Action," in which Plaintiff attempts to set forth her claims, reads in its entirety:

Denied me the right to Freedom of Information Act (FOIA), Reprisal, Harassment, discrimination, not given an equal employment opportunity, retaliation, wasn't given a hearing for the adverse action against me, Breach of contract, defamation of character, denied promotion, didn't complete the procedures outlined in NGR 600-22/ANGI 36-3, didn't meet time frame to investigate complaint, unauthorized officer filed documents. (Am. Compl. at 1-2.) The Amended Complaint also contains the phrase "add to cause of action: conspiracy . . ."*fn2 (Id. at 1.) Apart from this recitation of claims, the Amended Complaint contains no factual allegations.

B. Procedural History

Plaintiff filed her Complaint in this action [Docket Item 1] on October 11, 2005, and filed an Amended Complaint [Docket Item 2] on October 28, 2005. In an Affidavit submitted in support of her first motion for the entry of default and default judgment [Docket Item 7-2], Plaintiff asserts that she attempted to serve the nine Individual Defendants named in the original Complaint*fn3 by mailing copies of the summons and Complaint via certified mail to the Individual Defendants' (apparent) respective places of employment. (Francis Aff. ¶ 5.) None of Plaintiff's receipts from these certified mailings were signed by any of the Individual Defendants. (Docket Item 7, Ex. E.) After Plaintiff filed the Amended Complaint naming five additional Individual Defendants,*fn4 summonses were issued as to these Defendants, but nothing in the record indicates that Plaintiff attempted to serve these additional Individual Defendants. Plaintiff did, however, serve the United States Attorney's Office in Camden, New Jersey on November 28, 2005, and subsequently effected service upon the Attorney General of the United States. (Docket Item 7, Exs. A, I.)

Thereafter, Plaintiff moved for entry of default and default judgment against Defendants, and Defendants moved to dismiss. In an Opinion and Order entered on September 19, 2006 [Docket Items 15 and 15], the Court denied Plaintiff's motion for the entry of default and default judgment and granted Defendants' motion to dismiss. Regarding Plaintiff's motion, the Court found that the Government Defendants -- the Department of the Army and the National Guard -- had "made a limited appearance and moved to dismiss . . . [and had thus] appeared or 'otherwise defended' in the action for the purposes of the Federal Rules of Civil Procedure." (Docket Item 14 at 8.)

The Court further found that default judgment as to the Individual Defendants was unwarranted because Plaintiff had failed to effect proper service upon any of the Individual Defendants, stating:

Rule 4(e)(1), Fed. R. Civ. P. authorizes the use of any means of service provided by the law of the state in which service is to be effected as well as the law of the forum state. See Fed. R. Civ. P. 4(e)(1). In an action filed in the District of New Jersey, such as this one, service may be effected pursuant to New Jersey Rule 4:4-4. See R. Bartkus, N.J. Federal Civil Procedure, § 2-2:3.2a, at 34-35. Federal Rule 4(e)(2) provides that an individual must be served by delivering the summons "to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode." Fed. R. Civ. P. 4(e). Mailing the summons and complaint to or leaving the summons and complaint at a defendant's place of business will not satisfy either Fed. R. Civ. P. 4(e)(1) or New Jersey Rule 4:4-4(a). See Guyette v. Stauffer Chem. Co., 518 F. Supp. 521, 527 (D.N.J. 1981); Wohlegmuth v. 560 Ocean Club, 302 N.J. Super. 306, 309 (App. Div. 1997).

Here, Plaintiff mailed the summons and a copy of the Complaint to each of the Individual Defendants' place of business. Moreover, here there is no evidence that any Individual Defendant actually received the mail. Such actions fail to comply with either Fed. R. Civ. P. 4(e)(1) or New Jersey Rule 4:4-4(a) and accordingly, this Court can ...


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