United States District Court, D. New Jersey
Barbara A. Williams
New Jersey Transit Rail Operation, et al.
before the Court is Defendants' motion to dismiss pro
se Plaintiff's Complaint for insufficient service of
process under Federal Rule of Civil Procedure 12(b)(5). (D.E.
No. 10). For the following reasons, Defendants' motion is
GRANTED. The Court will grant Plaintiff sixty days to
properly serve Defendants.
brought this action on February 28, 2017. (D.E. No. 1). On
March 1, 2017, the Clerk of Court issued a Summons for
Defendants New Jersey Transit Rail Operation
(“NJT”), Patrick Flanagan, Ralph Glover, and John
Bass. (D.E. No. 2). Plaintiff attempted to serve
Defendants by sending the Summons and Complaint via certified
mail to Deputy Attorney General (“DAG”) Michael
Gonnella. (See D.E. Nos. 7 & 8). Defendants
argue that Plaintiff's service of the Summons and
Complaint on DAG Gonnella by certified mail is defective as
to all Defendants. (See D.E. No. 10-1 at 1).
Defendants also argue that Plaintiff's failure to
properly serve Defendants within the time period permitted
under Federal Rule of Civil Procedure 4(m)-i.e., 90 days-
warrants dismissal of Plaintiff's Complaint. (See
Id. at 12-13).
a federal court may exercise personal jurisdiction over a
defendant, the procedural requirement of service of summons
must be satisfied. Service 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.” Omni Capital Int'l, Ltd. v.
Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987)
(citation and internal quotation marks omitted).
Federal Rule of Civil Procedure 4(e), service of process on
individuals may be effected by “following state law 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 (A) “by delivering
a copy of the summons and of the complaint to the individual
personally, (B) by “leaving a copy of each at the
individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides there,
” or (C) by “delivering a copy of each to an
agent authorized by appointment or by law to receive service
of process.” See Reddy v. Medquist, Inc., No.
06-4410, 2009 WL 2413673, at *3 (D.N.J. Aug. 4, 2009).
Plaintiff's filings indicate that she did not attempt to
make personal service on the Individual Defendants.
(See D.E. Nos. 11, 12 & 14). Plaintiff's
mailing of the Summons and Complaint to DAG Gonnella is
ineffective under both the Federal Rules of Civil Procedure
and Rules Governing the Courts of the State of New Jersey, as
DAG Gonnella is not an eligible agent to receive process on
behalf of the Individual Defendants. (See D.E. No.
10-4, Ex. A, Certification of Michael J. Gonnella
(“Gonnella Cert.”) ¶ 4). Accordingly,
Plaintiff must properly serve the Individual Defendants.
a Corporation, Partnership, or Association.
Federal Rule of Civil Procedure 4(h)(1), a domestic or
foreign corporation, partnership, or other unincorporated
association, when served in the United States, must be served
either (A) “in the manner prescribed by Rule 4(e)(1)
for serving an individual” or (B) “by delivering
a copy of the summons and of 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 and-if
the agent is one authorized by statute and the statute so
requires-by also mailing a copy of each to the
defendant.” See Reddy, 2009 WL 2413673, at
Plaintiff's filings indicate that she did not properly
serve NJT. DAG Gonnella is not authorized to accept service
on behalf of NJT, nor is DAG Gonnella even an employee of
NJT. (See Gonnella Cert. ¶ 3; D.E. No. 10-1 at
11-12); see also Kovalesky v. A.M.C. Associated
Merchandising Corp., 551 F.Supp. 544, 545-46 (S.D.N.Y.
Nov. 24, 1981). Further, because Plaintiff has not attempted
to personally serve NJT, she cannot rely on New Jersey Court
Rule 4:4-3, which allows service of process by certified mail
when personal service cannot be effectuated after a
reasonable and good faith attempt. Accordingly, Plaintiff
must properly serve NJT.
light of Plaintiff's pro se status and her
repeated (albeit, procedurally improper) efforts to serve
Defendants (see D.E. Nos. 11, 12 & 14), the
Court will permit Plaintiff sixty days to properly serve