Hapugalle v. Raddatz , 98 F. Supp. 3d 37 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
CHAITRI HAPUGALLE, )
)
)
Plaintiff, )
)
v. ) Civil Action No. 14-cv-1696 (TSC)
)
MARK RADDATZ, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Defendants, who removed this action from D.C. Superior Court on October 15, 2014,
have moved to dismiss on two grounds: that no Defendant was properly served, and that the
entire matter is precluded as res judicata. Plaintiff has effectively conceded that service was
insufficient and appears to have made no attempt to correct the defects. Accordingly, the Court
dismisses the case without prejudice and does not reach the independent question of whether the
case is barred under the doctrines of claim preclusion and issue preclusion.
I. BACKGROUND
Plaintiff initially filed a complaint in the Superior Court for the District of Columbia
against Mark Raddatz, Debra Lehan, Keener Management and Chastleton Cooperative
Association, Incorporated. (ECF No. 1-1 at 9) 1. Plaintiff lived in the Chastleton co-op building
and her lawsuit centers around her eviction, which was the subject of two consolidated actions
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References to page numbers are all to the pagination in the header created by ECF.
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before the Landlord-Tenant Branch of the D.C. Superior Court. In her amended complaint 2 she
asserts that Defendants violated federal housing, discrimination and debt collection laws, as well
as various state and local laws. (ECF No. 4-1 at 16, 32-43).
On September 29, 2014 the Defendants filed a motion in Superior Court seeking to
dismiss Plaintiff’s complaint as barred by principles of res judicata and for failure to properly
effectuate service of process. (ECF No. 4-1 at 64). In response, Plaintiff filed an amended
complaint, and filled out new summonses purportedly directed at the appropriate defendants and
addressed to their registered agents. (ECF No. 4-1 at 15). On that same day, she filed a brief in
which she argued that dismissal was not appropriate because any deficiencies in service of
process “should” have been “cure[d]” by her “provision” of the new addresses. (ECF No. 4-1 at
58). Plaintiff also indicated in her brief that a “Second Amended Complaint” was being prepared
and a motion was forthcoming “soon,” in which leave would be sought to file said complaint.
(ECF No. 4-1 at 58). 3
Defendants removed the action to this court prior to a ruling by the Superior Court on
their motion to dismiss. On November 17, 2014, Defendants refiled their motion to dismiss in
this court. (ECF No. 8). Plaintiff, now represented by counsel, responded by raising arguments
virtually identical to those raised by Plaintiff when proceeding pro se in Superior Court,
including the argument that Plaintiff’s filing of the amended complaint, despite the absence of
proof of service, cured any deficiencies. (Pl. Opp’n at 2). Plaintiff characterized her brief as a
“protective filing” because she had previously filed her response in D.C. Superior Court and that
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Defendants’ notice of removal attached only the original complaint. (ECF No. 1-1 at 9). The record from the D.C.
Superior Court (ECF 4-1 at 15) indicates that on October 9, 2014 – i.e. prior to removal – Plaintiff filed an amended
complaint.
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No such document, or motion for leave to file such a document, was filed in the Superior Court prior to removal, or
in this court after removal.
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response was “presumably” transmitted to this Court “upon removal of the case.” (Pl. Opp’n at
3).
II. LEGAL STANDARD
When the sufficiency of service is challenged, the plaintiff bears the burden of
establishing that service was validly perfected. Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir.
1987). “If the plaintiff fails to meet this burden, the court may dismiss the complaint for
ineffective service of process.” Wilson v. U.S. Park Police, 300 F.R.D. 606, 608 (D.D.C. 2014).
The adequacy of service prior to removal is governed by the law of the original forum, in
this instance the District of Columbia. UMC Dev., LLC v. District of Columbia, 982 F. Supp. 2d
13, 17 (D.D.C. 2013); 14C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Procedure §
3738 (4th ed.). D.C. Superior Court Civil Rule 4 addresses the manner of service, and Rule
4(c)(3) permits service of a person or corporation by “mailing a copy of the summons, complaint
and initial order to the person to be served by registered or certified mail, return receipt
requested.” Service on an individual may be accomplished by
delivering a copy of the summons, complaint and initial order to the individual
personally or by leaving copies thereof at the individual's dwelling house or
usual place of abode with some person of suitable age and discretion then
residing therein or by delivering a copy of the summons, complaint and initial
order to an agent authorized by appointment or by law to receive service of
process.
Super. Ct. Civ. R. 4(e)(2); Anderson v. Gates, 20 F. Supp. 3d 114, 122-23 (D.D.C. 2013)
(Plaintiff failed to demonstrate adequate service under D.C. law where plaintiff did not submit
“any proof that defendants signed for or otherwise received the mailings or that any recipients of
the mailings were authorized to accept service on behalf of defendants in their individual
capacities”). The affidavit of service must set forth specific facts demonstrating that the
signatory of the return receipt is a person who is qualified to accept service on the particular
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defendant. Super. Ct. Civ. R. 4(l)(2); Fletcher v. Reilly, No. 07-331, 2007 WL 2111030, at *1
(D.D.C. July 23, 2007).
Similarly, a corporation or association may be served
by delivering a copy of the summons, complaint and initial order 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 to
receive service and the statute so requires, by also mailing a copy to the
defendant[.]
Super. Ct. R. Civ. P. 4(h)(1). Again, if service is accomplished by mail, an affidavit of service
must set forth specific facts demonstrating that the signatory is qualified to accept service on
behalf of the corporation. Super. Ct. Civ. R. 4(l)(2).
III. ANALYSIS
A. Individual Defendants
Plaintiff mailed a summons made out to “Keener Management” by certified mail, return
receipt requested, to “Attorney Mark Raddatz and Debbie Lehan.” The mailing was to Raddatz’s
business address. (Def. Exs. 1, 2, 3) Similarly, Plaintiff attempted to serve Lehan by mail to the
Chastleton, which is where Lehan works, not where she resides. (Def. Exs. 4, 5, 6). Service by
mail to an individual defendant’s workplace is not service to a dwelling or abode or an
authorized agent. See, e.g., Williams v. Court Servs. & Offender Supervision Agency for D.C.,
840 F. Supp. 2d 192, 199 n.3 (D.D.C. 2012); Toms v. Hantman, 530 F. Supp. 2d 188, 191
(D.D.C. 2008); Wilson-Greene v. Dep't of Youth Rehab. Servs., No. 06-cv-2262, 2007 WL
2007557, at *2 (D.D.C. July 9, 2007). The individuals who signed for each piece of mail are not
alleged in any way to be agents of Raddatz or Lehan or persons who share their residence,
further rendering service defective. Wilson-Greene, 2007 WL 2007557, at *2; see also Brodie v.
Worthington, No. 09-cv-1828, 2010 WL 3892273, at *2 (D.D.C. Sept. 27, 2010) (discussing
circumstances under which receipt can be signed by someone other than individual defendant).
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Finally, even if all other aspects of service on Raddatz were proper, Plaintiff’s failure to provide
him with a summons directed to him is an additional defect. In light of the foregoing, the court
finds that Plaintiff did not properly effectuate service on either individual defendant.
B. Corporate Defendants
Service was mailed by certified mail to the Association’s office and signed for by Phillip
Gadson, who Defendants allege is a “third-party” security guard. (Def. Mem. 8). Plaintiff’s
affidavit of service states that Gadson is the “head security guard who receives and signs for mail
at the Chaslteton building.” (ECF No. 4-2 at 4). While Gadson may be a person whom the
building’s residents have authorized to sign for packages and mail, Plaintiff has presented no
evidence that the Association has authorized him as an agent to accept service of process on the
Assocation’s behalf.
Plaintiff served Keener Management by mail, which was signed for by Ian McArchie, a
property manager for Keener. (Def. Ex. 10; Pl. Aff. of Service, ECF No. 4-2 at 10). Once again,
Plaintiff has made no showing that McArchie is an individual authorized in some way to accept
service on Keener’s behalf. (Id.). Moreover, as with Raddatz, Plaintiff never served Keener
with a copy of a summons directed to Keener. (Def. Ex. 10). Since Plaintiff has not met her
burden in establishing the adequacy of service on Chastleton or Keener, service was improper.
Wilson v. Prudential Fin., 332 F. Supp. 2d 83, 88-89 (D.D.C. 2004).
C. Whether Plaintiff can cure defective service
In deference to a pro se plaintiff’s status, courts often decline to dismiss a case for
defective service, and instead provide the plaintiff an opportunity to perfect service, with an
admonition that failure to do so will result in dismissal. Moore v. Agency for Int’l Dev., 994 F.2d
874, 876 (D.C. Cir. 1993); Hilska v. Jones, 217 F.R.D. 16, 22 (D.D.C. 2003). The D.C. Circuit
has noted the particular importance of providing the pro se plaintiff with sufficient notice of the
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consequences of failing to perfect service. Moore, 994 F.2d at 876; Lindsey v. United States, 448
F. Supp. 2d 37, 47 (D.D.C. 2006) (noting that even though plaintiff failed to perfect service after
learning it was defective by virtue of 12(b)(5) motion, court would refrain from dismissing
where it had not previously instructed the plaintiff of the need to do so).
That solicitude is not warranted here. Plaintiff was alerted to defects in service by virtue
of Defendants’ motion to dismiss, which was first filed in Superior Court on September 29,
2014. (Superior Court Records, ECF No. 4-1 at 64). Plaintiff purported to respond to the
defective service by filing an amended complaint which “provide[d] alias addresses and
registered agents for the Defendant entities.” (Id. at 58). While Plaintiff’s amended complaint
did indeed list what appears to be valid addresses for service (id. at 15), there is no evidence that
Plaintiff in fact perfected service at those addresses. The subsequent removal of this case to this
Court might have confused Plaintiff and suggested that nothing further was required. Absent
additional factors, the Court would agree that dismissal would be improper, since it has not
instructed Plaintiff of the importance and necessity of proper service. Lindsey, 448 F. Supp. 2d
at 47. However, Plaintiff later retained counsel (Notice of Appearance, ECF No. 11), and
counsel opposed Defendants’ motion to dismiss for inadequate service by resting solely on the
filing, but without proof of service, of the Amended Complaint. Since then Plaintiff, with the
assistance of counsel, has had more than four months to perfect service, but has not done so.
Accordingly, the Court finds that dismissal is proper.
IV. CONCLUSION
Because Plaintiff failed to properly effectuate service on any Defendant, and because
neither Plaintiff nor her counsel have put into the record any evidence that they have attempted
to cure the deficiency, the Court dismisses this case without prejudice.
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A corresponding order will issue separately.
Dated: April 15, 2015
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