Jeffrey Cutler v. Alan Schnitzer

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-3693
__________
JEFFREY CUTLER,
Appellant
v.
ALAN SCHNITZER, Chairman the Traveler's Companies' Inc.;
EDWARD MCVEY, Pennsylvania Insurance Department;
RICHARD S. MILLS, McElroy, Deutsch, Mulvaney, & Carpenter, LLP;
KIANDRA BAIR, McNees, Wallace & Nurick; SAM JANESH, The LNP Media Group;
DENNIS STUCKEY, Lancaster County Chairman;
BRIAN HURTER, Lancaster County Controller;
MARK DALTON, Lancaster County Court Administrator;
DAVID BUCKWALTER, East Lampeter Township Chairman;
DAVID ZUILKOSKI, Conestoga Valley School District;
DENNISE COMMINS
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 5-17-cv-05025)
District Judge: Honorable Jeffrey L. Schmehl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 1, 2019
Before: MCKEE, COWEN and RENDELL, Circuit Judges*
*
The Honorable Robert J. Cowen participated in the decision in this case. Judge Cowen
assumed inactive status on April 1, 2022 after the submission date, but before the filing
(Opinion filed: July 15, 2022)
___________
OPINION**
___________
PER CURIAM
Pro se Appellant Jeffrey Cutler appeals from the District Court’s order dismissing
his case, pursuant to Federal Rule of Civil Procedure 4(m), for failure to effectuate proper
service of the summons and his complaint. For the reasons that follow, we will affirm
with a modification.
I.
Because we write primarily for the parties, we will recite only the facts necessary
for our discussion. In September 2017, Cutler filed his complaint in the United States
District Court for the Middle District of Pennsylvania, raising various claims that
stemmed from his duties as tax collector for East Lampeter Township. On the same day
as the complaint was filed, a summons was issued and provided to Cutler via U.S. mail.
He was also provided with a proof of service form.
of the opinion. This opinion is filed by a quorum of the panel pursuant to 28 U.S.C. §
46(d) and Third Circuit I.O.P. Chapter 12.
**
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
2
In November 2017, the case was transferred to the United States District Court for
the Eastern District of Pennsylvania because the events at issue took place in Lancaster,
Pennsylvania. On May 2, 2018, the District Court issued a notice that Cutler had not
served the summons and complaint on the defendants and that service needed to be made
by June 4, 2018, to comply with Rule 4(m). On May 22, 2018, Cutler filed an “Affidavit
of Service” that did not contain the date that service was allegedly effectuated and did not
indicate the means of service for each defendant. Cutler did not state that he sought or
obtained a waiver of service from any of the defendants.
Most of the defendants filed motions to dismiss for lack of proper service, lack of
jurisdiction, and failure to state a claim. The District Court dismissed the case based on
its determination that Cutler had failed to effectuate proper service of the summons and
complaint on any of the defendants. The District Court further determined that its
dismissal was with prejudice. Cutler then filed a motion for reconsideration, which the
District Court denied. This appeal ensued.1
II.
We have jurisdiction under 28 U.S.C. § 1291. See In re Bath & Kitchen Fixtures
Antitrust Litig., 535 F.3d 161, 165 n.5 (3d Cir. 2008); cf. Umbenhauer v. Woog, 969 F.2d
25, 30 n.6 (3d Cir. 1992). “Ordinarily we exercise plenary review over issues of service
1
This Court denied various motions that Cutler filed on appeal, including his motions to
recuse various judges of this Court, to consolidate this appeal with other actions, to hold
an initial hearing en banc, and to change venue.
3
under Fed. R. Civ. P. 4, and review decisions regarding whether or not good cause exists
to extend the . . . service period for abuse of discretion.” Ayres v. Jacobs & Crumplar,
P.A., 99 F.3d 565, 569 n.4 (3d Cir. 1996) (citation omitted). “We review findings of fact
necessary to the application of procedural rules, including Rule 4, under a clearly
erroneous standard.” Grand Entm’t Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476,
481 (3d Cir. 1993). We may affirm on any basis supported by the record. See Murray v.
Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
III.
Rule 4(m) of the Federal Rules of Civil Procedure provides that “[i]f a defendant
is not served within 90 days after the complaint is filed, the court—on motion or on its
own after notice to the plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.” Here, because Cutler
has raised no argument that he effectuated proper service, we need not address that issue
in detail. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (issues not
raised on appeal are waived). We simply note that “the party asserting the validity of
service bears the burden of proof on that issue,” Grand Entm’t Grp., Ltd., 988 F.2d at
488, and that Cutler has failed to establish the date and manner of service, let alone that
service was timely under Rule 4 or was effectuated in a manner authorized by Rule 4.
See Ayres, 99 F.3d at 570 (affirming dismissal for failure to effectuate proper service
because attempted service was not “in accordance with Rule 4”). Thus, we will affirm
4
the District Court’s ruling that Cutler failed to effectuate proper service of the summons
and complaint.2
However, when a district court dismisses an action for lack of proper service, the
District Court “must dismiss the action without prejudice.” Fed. R. Civ. P. 4(m)
(emphasis added). Because the District Court’s dismissal here was for lack of service
under Rule 4(m), the District Court erred in entering its dismissal with prejudice. See
Umbenhauer, 969 F.2d at 30 n.6 (dismissals for improper service “must be entered
without prejudice”).3
Accordingly, we modify the District Court’s order to dismiss the complaint
without prejudice pursuant to Federal Rule of Civil Procedure 4(m). We will affirm the
District Court’s order as modified. We deny Cutler’s motion to expand the record on
appeal. See Burton v. Teleflex Inc., 707 F.3d 417, 435–36 (3d Cir. 2013).
2
Cutler has waived any argument that he had insufficient notice or that he could show
good cause or another reason for extending the time for service. Cf. Petrucelli v.
Bohringer & Ratzinger, 46 F.3d 1298, 1307 (3d Cir. 1995).
3
Apart from the error in dismissing with prejudice, the District Court properly
determined that Cutler’s motion for reconsideration was meritless, as he failed to
establish “at least one of the following grounds: (1) an intervening change in the
controlling law; (2) the availability of new evidence that was not available when the court
granted the motion for summary judgment; or (3) the need to correct a clear error of law
or fact or to prevent manifest injustice.” Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). As Cutler failed to effectuate service of the
summons and complaint, the District Court properly denied his various other motions,
including his motion for a default judgment. See Petrucelli, 46 F.3d at 1304.
5