United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS, UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on United States Magistrate Judge
Nachmanoff's Report and Recommendations [Dkt. 16], which
recommends that the Court dismiss this case for improper
service of process. This matter is also before the Court on
pro se Plaintiff Andrew Chien's Motion for
Reconsideration of Dismissal and Permission to Enlarge Time
[Dkt. 17], which this court liberally construes as an
objection to Judge Nachmanoff's Report and
Recommendations. For the reasons that follow, the Court will
deny Plaintiff's Motion to Reconsider, adopt Judge
Nachmanoff's Report and Recommendations, and dismiss
Plaintiff's Complaint without prejudice.
is “a self-employed financial consultant” who
alleges that he was retaliated against after discovering that
a client of the Defendants “consistently engaged”
in embezzlement. Compl. [Dkt. 1] at 9, 14. Plaintiff claims
that Defendants William K. Grogan and William K. Grogan &
Associates (hereinafter “Defendants”) engaged in
retaliation by participating in a conspiracy to damage his
“personal property, business, and living by false
arrest and false imprisonment of [Plaintiff] for 1146 days .
. . under the excuse of VA debt collection.”
Id. at 8. Plaintiff's 123-page Complaint also
accuses Defendants of committing multiple criminal offenses.
On November 28, 2016, Plaintiff filed suit against
Defendants, alleging, inter alia, civil rights
violations pursuant to 42 U.S.C. §§ 1981-1983 as
well as violations of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C.
to the Federal Rules, whenever a magistrate judge enters a
recommendation on a dispositive matter, the district court
must review it de novo. Fed.R.Civ.P. 72(b)(3).
“The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.”
March 3, 2017, Judge Nachmanoff issued his Report and
Recommendations [Dkt. 16]. The report concludes that
Plaintiff's Complaint should be dismissed without
prejudice for improper service of process. Because the merits
of Judge Nachmanoff's recommendations, as well as
Plaintiff's objection to those recommendations, turn on
the procedural history of this case, the Court will now
briefly explain that history.
December 2, 2016, a summons was issued with respect to each
Defendant. [Dkt. 4.] On December 8, 2016, Plaintiff attempted
to serve Defendants via a private process server in
Connecticut using priority mail and a tracking number. [Dkt.
6.] On January 9, 2017, Plaintiff filed his first Motion for
Default Judgment [Dkt. 7], which was denied as premature by
Judge Nachmanoff for improper service of process [Dkt. 9]. In
his order, Judge Nachmanoff advised Plaintiff “to serve
Defendants within ninety (90) days of the filing of the
Complaint, in accordance with the rules, or face possible
dismissal of the lawsuit.” [Id.] Rather than
make any effort to properly serve Defendants, Plaintiff chose
instead to file a second Motion for Default Judgment on
February 15, 2017, and ask for a hearing date of March 3,
2017. [Dkt. 10.] Plaintiff also filed a Memorandum in
Support, which states that “both Defendants received
the summons and complaint on December 12, 2016, ” and
that the “scheduled hearing date of 3/3/17 was 95 days
away from the day when the complaint was filed, which was in
compliance with the advice of the Court.” Mem. in Supp.
[Dkt. 11] ¶ 1. As this Memorandum demonstrates,
Plaintiff failed to follow Judge Nachmanoff's Order [Dkt.
9], which advised Plaintiff to serve Defendants in accordance
with the Rules. Now that Plaintiff has failed to properly
serve Defendants, he objects to Judge Nachmanoff's
recommendation that this Court dismiss his case. He also
seeks an extension of approximately sixty (60) days to
properly serve Defendants under the Rules.
to Rule 12(b)(5), dismissal is appropriate whenever service
of process is insufficient. Fed.R.Civ.P. 12(b)(5). Because
Plaintiff is suing both an individual and a law firm, he must
follow a different set of rules in order to serve each.
Moreover, Plaintiff can choose to follow either the Federal
Rules of Civil Procedure or applicable state law.
See Fed. R. Civ. P. 4.
the Federal Rules, an individual may be served personally, at
his or her dwelling or usual place of abode, or by delivery
to an agent authorized or appointed to receive service of
process. Fed.R.Civ.P. 4(e). Under Virginia law, service can
also take place by serving an individual personally; by
delivering a copy of the summons and complaint “and
giving information of its purport” to a family member
at the defendant's residence who is at least sixteen
years old, where the individual is not found at his or her
usual place of abode; or by posting a copy of the summons and
complaint at the front door of the person's abode. Va.
Code § 8.01-296.
contrast, to serve a corporation, partnership, or association
pursuant to the Federal Rules, the plaintiff must deliver a
copy of the summons and complaint to an agent authorized or
appointed to receive service of process and, if the agent is
authorized by statute and the statute so requires, by also
mailing a copy of each to the defendant. Fed.R.Civ.P. 4(h).
Under Virginia law, a corporation may also be served by
personal service on any officer, director, or registered
agent. Va. Code § 8.01-299. Similarly, an unincorporated
association may be served under Virginia law by personal
service on any officer, trustee, director, staff member, or
other agent. Va. Code § 8.01-305.
evaluating Plaintiff's objections today, the Court is
mindful that Plaintiff is proceeding in this matter pro
se. Although Plaintiff's pro se status
might entitle him to “liberal treatment by courts,
” the Court is also cognizant of the fact that
“even pro se litigants are [still] expected to
comply with time requirements and other procedural rules[, ]
‘without which effective judicial administration would
be impossible.'” Dancy v. Univ. of N. Carolina
at Charlotte, No. 3:08-CV-166-RJC-DCK, 2009 WL 2424039,
at *2 (W.D. N.C. Aug. 3, 2009) (quoting Ballard v.
Carlson, 882 F .2d 93, 96 (4th Cir. 1989)).
Plaintiff served both Defendants via priority mail and a
tracking number. This is not an accepted method for service
under Rule 4 or Virginia law. Judge Nachmanoff cautioned
Plaintiff prior to the 90-day deadline that this method of
service did not comply with the Rules, yet Plaintiff made no
additional effort to serve Defendants properly. Moreover,
Plaintiff's Motion for Reconsideration does not include
any information that would allow the Court to conclude that
good cause exists for the failure to execute proper service
of process prior to the deadline. See Fed. R. Civ.
P. 4(m). Accordingly, the Court agrees with Judge