United States District Court, D. New Jersey
B. Simandle Chief U.S. District Judge
matter is before the Court upon the motion by Defendant
Johanna Sunkett McBride to dismiss the complaint for
insufficient service of process under Rule 12(b)(5),
Fed.R.Civ.P. [Docket Item 12] and Plaintiff Gregory
Royal's Motion to Strike [Docket Item 16]. For the
following reasons, the Court will grant the motion to dismiss
and deny the motion to strike.
Court recounts the following facts gleaned from the
complaint, presumed true for the purposes of this motion. In
short, pro se Plaintiff Gregory Royal asserts that
he was coerced into signing false documents that defrauded
him of his deceased wife's estate. (Complaint [Docket
Item 1] at ¶ 10.) Mr. Royal brings claims against, inter
alia, Joanna Sunkett McBride, one of his sisters-in-law,
alleging that she is “responsible for advocating for
the same machinations to defraud and deprive” him of
his deceased wife's estate. (Id. at ¶ 8.)
Mr. Royal filed this § 1983 claim in state court on
December 10, 2015 and another defendant, Cheryl Nidorf
Austin, removed the case to federal court on May 4, 2016.
[Docket Item 1.]
Under Rule 12(b)(5), Fed. R. Civ. P., a defendant may move to
dismiss on the grounds that service of process was
insufficient, or in other words that the method and timing of
the documents served was inadequate. Ms. McBride contends in
her motion that she never personally received process, and
was only notified about the existence of this case in June
2016, when counsel for Defendant Austin sent Ms. McBride a
letter. (Certification of Johanna Sunkett McBride
(“McBride Cert.”) [Docket Item 12-1] at
¶¶ 2, 4-5.) In particular, Ms. McBride states that
she “never received by mail, certified or otherwise, a
copy of a summons and complaint in this case.”
(Id. at 5.)
Royal filed an opposition to Ms. McBride's motion,
addressing Ms. McBride's certification and moving to
strike her motion under Rule 12(f)(2), Fed.R.Civ.P.
(Certification of Gregory Royal (“Royal Cert.”)
[Docket Item 16.] Mr. Royal asserts that he sent Ms. McBride
a copy of the summons and complaint to her home in
Gainesville, Florida by certified mail, and attaches a copy
of the certified mail receipt and envelope addressed to Ms.
McBride marked “RETURN TO SENDER.” (Id.
at ¶ 2, Exhibit A.) He contends that the proof of
service he filed, required by N.J. Ct. R. 4:4-7, described
his “reasonable and good faith attempt” to make
personal service before serving Ms. McBride by mail.
(Id. at ¶ 5.)
4(e), Fed. R. Civ. P., governs methods of service and
provides that service upon an individual must be made by
either (1) following law for serving summons in the state
where the district court is located, or (2) by one of the
following: (A) delivering a copy of the summons and complaint
to the individual personally, (B) leaving a copy of the
summons and complaint at the individual's dwelling with
someone of suitable age and discretion, or (C) delivering a
copy of the summons and complaint to an agent authorized by
appointment or by law to receive service of process. A
plaintiff must serve defendants within 90 days of filing his
complaint. Fed.R.Civ.P. 4(m).
Jersey law provides that service of process may be effected
by mail, instead of by personal service, under two
circumstances. First, a plaintiff may attempt to serve a
defendant in the first instance by “registered,
certified or ordinary mail, ” but this service is only
considered valid where “the defendant answers the
complaint or otherwise appears in response thereto”
within 60 days following mailed service. N.J. Ct. R.
4:4-4(c). Second, if a plaintiff files an affidavit of
diligent effort satisfying the requirements of N.J. Ct. R.
4:4-5(b) that establishes that “despite diligent effort
and inquiry personal service cannot be made” within the
state of New Jersey in accordance with N.J. Ct. R. 4:4-4(a),
then service may be made by simultaneously sending
copies of the summons and complaint by registered or
certified mail, return receipt requested, and by
ordinary mail. N.J. Ct. R. 4:4-4(b)(1)(C). Service by mail
under this provision “is valid even if the defendant
does not answer or appear.” Citibank, N.A. v.
Russo, 759 A.2d 865, 868 (N.J. App. Div. 2000).
Court finds that Mr. Royal's mailing did not constitute
proper service under either N.J. Ct. R. 4:4-4(c) or
4:4-4(b)(1)(C). First, because Ms. McBride did not
“answer the complaint or otherwise appear”
within 60 days of when Mr. Royal mailed her copy of the
summons and complaint - apparently on March 29, 2016,
according to the postage on the copy of the envelope Mr.
Royal attached as Exhibit A to his certification - service by
mail is not valid under N.J. Ct. R. 4:4-4(c). Second, even if
the Court construes Mr. Royal's assertion that his proof
of service required by N.J. Ct. R. 4:4-7 describing his
efforts to serve Ms. McBride personally as an affidavit of
diligent effort for the purposes of N.J. Ct. R. 4:4-4(b)(1),
Mr. Royal did not comply with N.J. Ct. R. 4:4-4(b)(1)(C)
because he sent a copy of the summons and complaint by
certified mail, return receipt requested, but did not
simultaneously send a copy by ordinary mail. The Rules
required Mr. Royal to send copies by both means in order to
effect valid service upon Ms. McBride.
sum, Mr. Royal has not met the requirements of the New Jersey
rules for service of process. See Driscoll v.
Burlington-Bristol Bridge Co., 86 A.2d 201, 230 (N.J.
1952) (“The requirements of the rules with respect to
service of process go to the jurisdiction of the court and
must be strictly complied with.”). The Court will grant
Ms. McBride's motion and will dismiss the complaint
against her for insufficient service of process.
Court will likewise deny Mr. Royal's motion to strike Ms.
McBride's motion under Fed.R.Civ.P. 12(f). Rule 12(f)
allows the Court to strike “from any pleading any
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
“[A] court should not grant a motion to strike a
defense unless the insufficiency of the defense is
‘clearly apparent.'” Cipollone v. Liggett
Group, Inc., 789 F.2d 181 (3d Cir. 1986). Ms.
McBride's meritorious motion is plainly not insufficient
and will not be stricken from the record.
Court notes from the docket that Defendant Cheryl Nidorf
Austin has stated a Crossclaim for Contribution and/or
Indemnification against Ms. McBride [see Docket Item 4], and
the Court cannot determine from the docket whether Ms. Austin
duly served Ms. McBride with her crossclaim. Accordingly, Ms.
McBride's status as a crossclaim defendant or as a