Hardy v. Joseph I. Sussman, P.C.

• Decision Date: 11 July 2013
• Docket Number: Civil Action No. 12–2040(ABJ).
• Citation: 953 F.Supp.2d 102
• Parties: La Tricia HARDY, Plaintiff, v. JOSEPH I. SUSSMAN, P.C., Defendant.
• Court: U.S. District Court — District of Columbia

953 F.Supp.2d 102

La Tricia HARDY, Plaintiff,

v.JOSEPH I. SUSSMAN, P.C., Defendant.

Civil Action No. 12–2040(ABJ).

United States District Court,

District of Columbia.

July 11, 2013.

La Tricia Hardy, Washington, DC, pro se.

Oladipo A. Akin–Deko, Akin–Deko & Puig PLLC, Silver Spring, MD, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

This matter is before the Court on the plaintiff's Motion for Entry of Default Judgment [ECF No. 7] and Defendant's Motion to Set Aside the Entry of Default and Motion to Dismiss the Complaint for Failure to State a Claim Upon Which Relief Can Be Granted, Failure to Properly Serve Defendant[ ], & for Lack of Personal Jurisdiction and Motion for Sanctions and Attorneys Fees [ECF No. 9]. For the reasons discussed below, the Court will dismiss this action.

I. BACKGROUND

Piecing together the few factual allegations set forth in the complaint along with the exhibits attached thereto, this action arises from efforts by Joseph I. Sussman, P.C. (“the defendant”) to collect a debt owed by the plaintiff to its client, Northern Leasing Systems, Inc. (“NLS”), for the rental of equipment for processing non-cash payments at the plaintiff's business, Capitol Hill Beauty LLC. See Compl. ¶ 11; see generally id., Ex. 1 (Letter from plaintiff to Joseph I. Sussman, P.C. dated March 19, 2012) & Ex. 3 (Non Cancelable Equipment Finance Lease Agreement dated October 14, 2010) at 1; Mem. of P. & A. in Supp. of Def.'s Mot. to Set Aside the Entry of Default (“Def.'s Mem.”), Ex. 1 (Decl. of Joseph Sussman (“Sussman Decl.”)) ¶ 11. The defendant is a New York law firm, the sole stockholder and officer of which is Joseph I. Sussman. Sussman Decl. ¶¶ 1–2. The defendant neither has employees, engages in the practice of law, solicits business, transacts business, nor maintains an office in the District of Columbia. Id. ¶¶ 8–9.

NLS retained the defendant in New York “to collect a debt owed by the Plaintiff to NLS arising out of an Equipment Finance Lease between NLS and Plaintiff's corporation, Capitol Hill Beauty, LLC.” Id. ¶ 11; see Compl. ¶ 11. The plaintiff “individually, personally, and unconditionally guarant[eed] to [NLS] the prompt payment when due of all ... obligations” under the lease agreement. Compl., Ex. 3 (Non Cancelable Equipment Finance Lease Agreement) at 2. At some point the plaintiff “refuse[d] to pay any such debt” on the ground that she “does not owe” anything to NLS. Id. ¶ 11. According to the defendant, the plaintiff defaultedon the agreement, and “in June 2012, [Sussman] filed an action in the Civil Court of the City of New York, New York County, on behalf of NLS, against La Tricia Hardy, the Plaintiff herein.” Sussman Decl. ¶ 12; see Compl. ¶¶ 12–14. Because “Ms. Hardy failed to respond to the summons and complaint in that action, ... the court entered a default judgment against her on October 26, 2012.” Sussman Decl. ¶ 13; see Def.'s Mem., Ex. 3 (Civil Judgment).

The plaintiff alleges that the defendant engaged in collection practices that not only were harassing and deceptive, see Compl. ¶¶ 11–15, but also were in violation of the Fair Debt Collection Practices Act (“FDCPA”), see15 U.S.C. § 1692, and the D.C. Consumer Protections Act (“Consumer Act”), seeD.C. Code §§ 28–3801 to –3819. See generally Compl. ¶¶ 16–30 (Counts I–VIII). She demands a declaratory judgment and monetary damages. See id. at 6 (page number designated by ECF).

Because the plaintiff is proceeding pro se and in forma pauperis, the Clerk of Court issued a summons and the United States Marshals Service attempted service of the summons and complaint on the plaintiff's behalf. See28 U.S.C. § 1915(d); Fed.R.Civ.P. 4(c)(3). The summons and complaint were sent by certified mail to Joseph I. Sussman P.C., and were delivered on January 18, 2013. See ECF No. 4 (Notice and Acknowledgement of Receipt of Summons and Complaint by Mail). According to Mr. Sussman, he did not sign the mail receipt. Sussman Decl. ¶ 5. Had the defendant been properly served on January 18, 2013, its answer would have been due on February 8, 2013.

On February 12, 2013, the plaintiff filed a Motion for Entry of Default [ECF No. 5]. The Clerk of Court entered a default [ECF No. 6] on February 13, 2013. The plaintiff filed a Motion for Entry of Default Judgment [ECF No. 7] on March 1, 2013. The defendant filed its motion to set aside entry of default and to dismiss the complaint [ECF No. 9] on March 6, 2013.

II. DISCUSSION

A. The Defendant's Motion to Dismiss

1. Service of Process

The defendant moves to dismiss under Rule 12(b)(5) of the Federal Rules of Civil Procedure for insufficient service of process.¹ Def.'s Mem. at 5. “Here the only officer or agent registered to receive service on [the defendant] is Joseph I. Sussman,” id. at 6, and Sussman neither signed the mail receipt, authorized another person to receive service of process on the defendant's behalf, nor completed the Notice and Acknowledgement of Receipt of Summons. Sussman Decl. ¶¶ 4–6. The plaintiff responds that “[i]t is not the responsibility of the persons delivering the Summons to the [d]efendant to determine if the person signing for the mail is the appropriate person, seeing as how no individual's name was on any documents.” Pl.'s Resp. to Def.'s Mot. to Dismiss at 3 (“Pl.'s Resp.”) (page numbers designated by ECF). As long as the summons was issued and mailed to the correct entity at the correct address, she considers it “an internal matter for Mr. Sussman to clarify who ... is to sign for Certified Mail.” Id.

Service of process may be made 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.” Fed.R.Civ.P. 4(e), (h)(1)(A). In the District of Columbia, service of process may be effected by “mail addressed to the person to be served and requiring a signed receipt.” D.C.Code § 13–431; see D.C. SCR–Civil R. 4(c)(3), (h)(1). If the defendant is a corporation or partnership, a copy of the summons and complaint must be delivered to an officer or agent authorized to receive service of process on the entity's behalf. Fed.R.Civ.P. 4(h)(1)(B); D.C. SCR–Civil R. 4(h)(1).

“When a defendant moves to dismiss under Rule 12(b)(5), the plaintiff has the burden of establishing the validity of service of process; ... the procedure employed [must] satisf[y] the requirements of the relevant portions of Rule 4 and any other applicable provision of law.' ” Freedom Watch, Inc. v. OPEC, 288 F.R.D. 230, 231 (D.D.C.2013) (quoting Light v. Wolf, 816 F.2d 746, 751 (D.C.Cir.1987)). Service by certified mail may be insufficient if the summons and complaint are not addressed to a specific and proper party and if there is no confirmation of receipt by a person authorized to accept service. See Angelich v. MedTrust, LLC, 910 F.Supp.2d 128, 132 (D.D.C.2012); Wilson v. Prudential Fin., 332 F.Supp.2d 83, 88–89 (D.D.C.2004).

Joseph Sussman—the sole officer and agent authorized to receive service on the defendant's behalf—avers that he neither received the summons and complaint by mail nor signed the return receipt. Under these circumstances, the defendant demonstrates that it has not been properly served. See Brown v. Cape Envtl. Management Cape, Inc., No. 3:12–cv–01048, 2013 WL 1412686, at *1 (M.D.Tenn. Apr. 8, 2013) (Magistrate Report and Recommendation) (concluding that defendant had not been properly served where administrative assistant without authority to accept service on defendant's behalf signed for documents delivered by certified mail). If a defendant has not been properly served, the Court “ordinarily would be powerless to proceed with the case” as against that defendant. Williams v. GEICO Corp., 792 F.Supp.2d 58, 66 (D.D.C.2011) (citation omitted); see Johnson v. Williams, No. 05–2315, 2006 WL 2788985, at *2 (D.D.C. Sept. 26, 2006) (“Deference to plaintiff's pro se status ... cannot justify the exercise of jurisdiction over defendants who have not been served properly.”).

Here, because the plaintiff is proceeding pro se and in forma pauperis, the Court will not penalize her for having relied on the Clerk of Court and the United States Marshals Service to effect service of process on her behalf. See Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir.2010) (declining to penalize in forma pauperis plaintiff for U.S. Marshals Service's delay in effecting service of process); Carroll v. Fentress Cnty. Sheriff's Dep't, No. 2:11–0019, 2012 WL 140417, at *2 (M.D.Tenn. Jan. 18, 2012) (Magistrate Report and Recommendation to deny motion to dismiss for insufficient service of process where, after prisoner plaintiffs adequately identified the defendants to be served, “responsibility for service of process rest[ed] with the United States Marshals Service. If defendants were not properly served, plaintiffs cannot be held responsible.”), adopted,2012 WL 847775 (M.D.Tenn. Mar. 12, 2012). The Court will deny the defendant's motion to dismiss the complaint for insufficient service of process. Even if the service deficiencies were cured, however, as the Court discusses below, there are independent bases on which to dismiss this complaint.

2. Personal Jurisdiction

The defendant argues that the complaint must be dismissed because the Court lacks personal jurisdiction over it. See generally Def.'s Mem. at 6–8. The plaintiff bears the “burden of establishing personal jurisdiction over each defendant.” Thompson Hine LLP v. Smoking Everywhere, Inc., 840 F.Supp.2d 138, 141 (D.D.C.2012) (citing Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 455–56 (D.C.Cir.1990)). She cannot rely on bare allegations or conclusory statements, but “must allege specific acts connecting [the] defendant with the forum.” Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C.Cir.2001) (internal quotation omitted). The plaintiff's pro se status does not relieve her of her obligation to ...