Wilson v. Prudential Financial
| Decision Date | 13 August 2004 |
| Docket Number | No. CIV.A. 03-2313(RMU).,CIV.A. 03-2313(RMU). |
| Citation | 332 F.Supp.2d 83 |
| Parties | Derek T. WILSON, Plaintiff, v. PRUDENTIAL FINANCIAL, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Kevin L. Chapple, Washington, DC, for Plaintiff.
Stephanie Louise Marn, Proskauer Rose, LLP, Mariana del Valle Bravo, William Edward Buchanan, James P. Steele, Carr Maloney, PC, Washington, DC, for Defendants.
Derek T. Wilson ("the plaintiff") lost his job offer due to a problematic background check. He brings suit against his once-prospective employer, Prudential Financial ("Prudential"), and the company that processed his background check, CARCO Group, Inc. ("CARCO"), alleging breach of contract by Prudential and negligence and defamation by CARCO. The case is now before the court on Prudential's motion to dismiss for failure to state a claim and CARCO's motion to dismiss for insufficient service and failure to state a claim or, in the alternative, for summary judgment. Because the plaintiff fails to state a claim against Prudential, the court grants Prudential's motion to dismiss. Although the court determines that the plaintiff has not effected sufficient service on CARCO, the court denies CARCO's motion to dismiss for insufficient service and directs the plaintiff to perfect service on CARCO.
The plaintiff alleges the following facts: In 2002, Prudential offered the plaintiff a position as a relocation counselor in one of its offices in the District of Columbia. Compl. ¶ 2. The plaintiff accepted the offer. Id. ¶ 4. On August 1, 2002, Prudential sent the plaintiff a letter "confirming his acceptance of [Prudential's] offer" and indicating that the offer was contingent on the satisfactory completion of a background-verification process expected to take 10 days. Id. ¶¶ 5-6, 25. On September 3, 2002, CARCO (the consumer reporting agency whom Prudential retained to conduct the background verification) provided Prudential with a report. Id. ¶¶ 13-14.
CAROC's report contained a section on criminal history, and CARCO entered the word "pending" in the box correlating to the status of the plaintiff's supposed criminal history in Oklahoma. Id. On the same day Prudential received this report, Prudential sent the plaintiff a copy of the report and a letter denying the plaintiff's application for employment. Id. ¶ 9. Prudential cited an incomplete, unsatisfactory, and untimely background verification as the reason for its denial. Id. ¶¶ 9-11, 16.
The plaintiff subsequently contacted Oklahoma authorities, who informed the plaintiff that there were no criminal charges pending against him. Id. ¶ 19. The plaintiff also ordered a background check from the Oklahoma State Bureau of Investigation. He learned that although there are persons named "Derek Wilson" and "Derrick Wilson" against whom charges are pending, neither shares the plaintiff's social-security number or date of birth. Id. ¶ 20.
On September 5, 2002, the plaintiff informed CARCO that his personal history was clear of criminal charges and asked CARCO to send an amended report to Prudential. Id. ¶ 21. On September 6, 2002, CARCO sent Prudential an amended report indicating that the plaintiff had no criminal charges pending against him. Id. ¶ 22. On September 25, 2002, Prudential sent the plaintiff a third letter stating that Prudential was aware that the plaintiff's background was clear and that Prudential would contact the plaintiff when a suitable position became available." Opp'n to Prudential's Mot. at 5. To date, Prudential has not offered the plaintiff employment. Compl. ¶ 23.
In November 2002, the plaintiff brought suit in the Superior Court of the District of Columbia, claiming breach of contract by Prudential and negligence and defamation by CARCO. Wilson v. Prudential Financial, 218 F.R.D. 1, 2 (D.D.C.2003). Prudential removed the action to this court on the basis of diversity. Id. In December 2002, Prudential filed a motion to dismiss for failure to state a claim. Id. CARCO followed a month later with a motion to dismiss for failure to state a claim or, in the alternative, for summary judgment. Id. The plaintiff moved the court to extend time through March 26, 2003, to file his responses to the defendants' motions, and on March 23, 2003, the plaintiff filed oppositions to the defendants' motions to dismiss. Id. The court denied the plaintiff's motion to extend time, however, and granted, as conceded, the defendants' motions to dismiss (the court dismissed the plaintiff's complaint without prejudice). Id. at 4.
In November 2003, the plaintiff brought the present suit against Prudential and CARCO. The plaintiff again claims breach of contract by Prudential and negligence and defamation by CARCO. As in the previous incarnation of this case, Prudential moves to dismiss for failure to state a claim and CARCO moves to dismiss or, in the alternative, for summary judgment. The court now turns to the motions.
A party can move the court to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process. "[T]he party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law." Light v. Wolf, 816 F.2d 746, 751 (D.C.Cir.1987) (internal quotations omitted); Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C.2003).
Rule 4(m) provides the time limits for service and the consequences of failing to provide proper service. It states that:
[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Fed.R.Civ.P. 4(m). Thus, where the plaintiff fails to effect proper service within the 120-day time limit laid down by Rule 4(m), the plaintiff carries the burden of showing good cause for that failure. Id.; Whitehead v. CBS/Viacom, Inc., 221 F.R.D. 1, 3 (D.D.C.2004). Moreover, unless the procedural requirements of effective service of process are satisfied, a court lacks power to assert personal jurisdiction over a defendant. Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 514 (D.C.Cir.2002) (citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987)).
Because CARCO is a corporation, the plaintiff must serve process in accordance with Federal Rule of Civil Procedure 4(h) or the District of Columbia's statutes for service on corporations. Fed.R.Civ.P. 4(h); James v. Booz-Allen & Hamilton, Inc., 206 F.R.D. 15, 17 (D.D.C.2002). Rule 4(h) authorizes service on a corporation "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process[.]" Fed.R.Civ.P. 4(h)(1). Rule 4(h) also allows service in accordance with the law of the state where process is served or the state where the subject district court is located. Id.; Fed.R.Civ.P. 4(e)(1). The District of Columbia rules, like Rule 4(h), authorize service on corporations to be made on "an officer, a managing or general agent, or any other agent authorized by appointment or law to receive service." D.C. R. Civ. P. 4(h)(1); Fed.R.Civ.P. 4(h)(1).
In November 2003, the plaintiff attempted to serve process on CARCO by sending, via certified mail, a copy of the summons and complaint to the office of James P. Steele, a lawyer in the District of Columbia. Def. CARCO's Mem. Supp. Mot. to Dismiss ("CARCO's Mot.") at 2. Juanita Bush, an employee at the firm where Steele works, received and signed for the letter containing the summons and complaint. Id. Mr. Steele, CARCO's attorney in this action, also represented CARCO in the plaintiff's previous suit against CARCO. Opp'n to CARCO's Mot. at 3.
While the parties do not dispute the facts underlying the plaintiff's attempted service, CARCO contends that mailing process to Steele's office did not constitute sufficient service because Steele and Ms. Bush are not "officers, managing or general agents, or any other agent authorized by appointment or by law to receive service of process on behalf of CARCO." CARCO's Mot. at 6. CARCO also notes that the plaintiff has made no further attempt to properly effect service or request a waiver of service. Id. at 6.
The plaintiff maintains that "Steele is an implied agent of CARCO who is authorized to receive service of process on [its] behalf." Opp'n to CARCO's Mot. at 2. The plaintiff points out that he has re-filed against CARCO the exact claims that he filed against CARCO in his former action, that Steele served as CARCO's counsel in that former action, and that Steele currently serves as CARCO's counsel in the present action. Id. at 3. Claiming (incorrectly1) that two motions are still pending in his former action before this court, the plaintiff argues that, aside from Steele, CARCO has no agent to receive service in the District of Columbia. Id. Finally, the plaintiff argues that, regardless of whether service was sufficient, the court should deny CARCO's motion because CARCO waived its service-of-process...
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