Mukherjee v. Blake
| Decision Date | 24 May 2013 |
| Docket Number | Civil Action No. 12-11381-FDS |
| Parties | LISA MUKHERJEE, Plaintiff, v. JACKIE BLAKE and JANET ANDERSEN, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
MEMORANDUM AND ORDER ON
DEFENDANTS' MOTION TO DISMISS
This is a civil action alleging workplace discrimination and harassment on the basis of national origin and skin color in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff Lisa Mukherjee was employed by the Center for Biostatistics in AIDS Research at the Harvard School of Public Health ("CBAR"). Defendant Jacqueline Blake was the Director of Finance and Administration at CBAR, and defendant Janet Andersen served as its Executive Director. Mukherjee was terminated in January 2010, after almost ten years of employment at CBAR. She contends that defendants harassed and adversely treated her while she was employed at CBAR, including intentionally mishandling work-authorization paperwork to create a pretextual reason for her ultimate termination. She is proceeding pro se.
Defendant has moved under Fed. R. Civ. P. 12(b)(5) and 12(b)(6) to dismiss the complaint for insufficient service of process and failure to state a claim upon which relief can be granted. For the reasons stated below, the motion will be granted.
The following factual allegations are drawn from the complaint and the attached exhibits, as well as matters incorporated by reference and matters of public record. See Trans-Spec Truck Serv. v. Caterpillar, 524 F.3d 315, 321 (1st Cir. 2008).1
Lisa Mukherjee, who is of East Indian descent, worked as a statistician at CBAR until January 2010. (See Compl. ¶1; Mot. at Ex. 4). She alleges that throughout her employment she was discriminated against based on her national origin and skin color. She specifically alleges that CBAR Executive Director Janet Andersen believed that "Aryans are a superior race," and that Andersen's belief motivated her treatment of employees at CBAR. (See Compl. ¶¶ 1, 9). Mukherjee alleges that because of her minority status she was, among other things, not paid her relocation costs; not permitted to attend a professional conference; given lower performance ratings; and not promoted at the requisite time. (See Compl. ¶ 9). According to Mukherjee, her immediate supervisors consistently rated her performance higher than the steering committee, of which Andersen was the head. (See id.).
At some point during Mukherjee's employment, CBAR had to complete and file paperwork in order to continue her work authorization, presumably with U.S. Citizenship and Immigration Services. She alleges that Jackie Blake, CBAR's Director of Finance and Administration, along with Andersen, intentionally neglected to complete and file that paperwork. (See Compl. ¶¶ 2-3).
Mukherjee was terminated on January 29, 2010. The stated reason for the termination was the lack of current work-authorization paperwork. (See Compl. ¶ 3). She alleges that this reason was pretextual, and that the real motivation for her termination was discrimination against minorities and retaliation for not ascribing to Andersen's discriminatory theories of racial hierarchy. (See Compl. ¶ 10).
On November 19, 2010, Mukherjee filed a charge of discrimination against CBAR with the MCAD, which she cross-filed with the EEOC. (Mot. at 8; see also Mot. at Ex. 4). In the charge, she advanced substantially the same allegations as those contained in the complaint. She mentioned both Blake and Andersen in describing the particulars of her claim, but did not name them as respondents. (See Mot. at Ex. 4). The MCAD dismissed the charge on September 29, 2011, based on a finding that there was not sufficient probable cause to support it; the EEOC subsequently adopted that finding. (See Mot. at 8, n. 6). Mukherjee filed an untimely appeal with the MCAD on December 29, 2011, which the MCAD denied on January 10, 2012. (See id.).
On July 27, 2012, Mukherjee filed this action against Blake and Andersen, seeking relief under Title VII. Blake and Andersen have moved to dismiss the complaint under Rules 12(b)(5) and 12(b)(6).
Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirements of service of process must be satisfied. Omni Capital Int'l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Rule 4 sets forth the acceptable methods by which service of process can be effected. Under Rule 4(e), there are four ways in which an individual defendant can be served within a judicial district of the United States: (1) 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 (here, Massachusetts); (2) by delivering a copy of the summons and of the complaint to the individual personally; (3) 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 (4) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. Fed. R. Civ. P. 4(e).
The Massachusetts rules for service are substantially similar to the other three options under the federal rules. Service can be made upon "an individual by delivering a copy of the summons and of the complaint to him personally; or by leaving copies thereof at his last and usual place of abode; or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by statute to receive service of process, provided that any further notice required by such statute be given." Mass. R. Civ. P. 4(d)(1). Massachusetts rules permit service by mail only for service of process outside the Commonwealth. See Mass. R. Civ. P. 4(e). Notably, neither the federal rules nor the Massachusetts rules permit service upon anindividual by certified mail at her place of employment.
Furthermore, under the federal rules, service of process has to take place within 120 days after the complaint is filed, or the court "must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Fed. R. Civ. P. 4(m). However, "if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Id.
When the sufficiency of process is challenged under Rule 12(b)(5), plaintiff bears "the burden of proving proper service." Lopez v. Municipality of Dorado, 979 F.2d 885, 887 (1st Cir. 1992). Plaintiff has not met that burden here.
The complaint in this action was filed on July 27, 2012. The 120-day period under Rule 4(m) expired on November 25, 2012, which was a Sunday. Under Fed. R. Civ. P. 6(a)(3), plaintiff therefore had until the following Monday, or November 26, to serve process on defendants. Defendants allege that they did not receive the certified-mail delivery of the complaint and summons until November 27. Plaintiff has not filed returns of service with the Court, and there is no evidence of any other attempts to serve defendants.
Plaintiff's attempt to serve defendants appears to be deficient in at least two ways. First, as noted above, neither the federal rules nor the Massachusetts rules permit service of process by certified mail upon individual defendants residing within the Commonwealth. See Fed. R. Civ. P. 4(e); Mass. R. Civ. P. 4(d) and (e). Plaintiff's only attempt to serve defendants was by certified mail delivered to their place of employment. Accordingly, the attempted service was procedurally deficient.
Second, defendants may not have received the certified mail within the proscribed 120-day time period. Although plaintiff sent the summons and complaint by certified mail prior to the expiration of the period, "service by mail under Rule 4 [when permitted] is generally held not to be effected until the day the mail is received." Furtado v. Napolitano, 2010 WL 577938, (D.Mass. 2010) (Zobel, J.) (emphasis added) (collecting cases from multiple circuits). Plaintiff has offered some evidence, in the form of return receipts, indicating that the certified mail may have been delivered to CBAR on November 26. There is no evidence, however, as to what time of day that delivery took place or whether CBAR has an internal mail delivery process that is initiated after mail from the postal service arrives at the office building. The spirit of Rule 4 and the policy underlying it dictate that the relevant point is when the defendants themselves actually received notice. See United States v. Ayer, 857 F.2d 881, 884 (1st Cir.1988) (). The Court does not have sufficient evidence to determine precisely when defendants received the summons and complaint that were sent to their place of employment by certified mail. Accordingly, the Court finds that plaintiff has not met her burden of proving timely service of process.
Defendants contend that there is no "good cause" for plaintiff's failure to serve process in a timely manner. Nor has plaintiff explicitly asked for a good-cause extension. Instead, her opposition implicitly seeks the court's indulgence in light of her pro se status and her request for a court-appointed attorney: " (Pl. Opp. at 1). Plaintiff also suggests that she was willing to effectuate in-person service herself, but was unable to do so as a result of an outstanding "no trespass warning which stated that plaintiff will be...
To continue reading
Request your trial