Johnson-Richardson v. University of Phoenix

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THOMAS C. JOHNSON-RICHARDSON,
Plaintiff,
v. Civil Action No. 18-3016 (RDM)
UNIVERSITY OF PHOENIX, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff, Thomas C. Johnson-Richardson, brings this action against his former employer,
the University of Phoenix (the “University”), and his former supervisor at the University, Jessica
Choi-Segert, alleging that Defendants “committed an unlawful act against [him] in violation of
Title IX.” Dkt. 4 at 1 (Am. Compl. 8). Defendants move to dismiss on three grounds: (1)
Plaintiff has not properly effected service; (2) Plaintiff executed a binding release; and (3)
Plaintiff’s claim is subject to binding arbitration. Dkt. 18. As explained below, the Court agrees
that Plaintiff has not yet effected service, but, because Plaintiff is proceeding pro se, the Court
will afford Plaintiff a further opportunity to do so. The Court further concludes that Defendants’
contentions that Plaintiff has released any claim that he might otherwise have and, in any event,
has agreed to binding arbitration, require consideration of materials beyond the scope of the
pleadings and are thus premature. The Court will, according, deny Defendants’ motion to
dismiss but will require that Plaintiff file proof of service within 45 days. If Plaintiff fails to do
so, the Court will dismiss the action without prejudice pursuant to Rule 4(m). See Fed. R. Civ. P.
4(m).
I. BACKGROUND
For purposes of the pending motion, the Court must accept the non-conclusory factual
allegations set forth in the amended complaint as true and will also consider the University’s
letter to Plaintiff regarding his Title IX complaint (“Title IX Letter”), which is referenced in, and
attached to, the amended complaint. See Dentons US LLP v. Republic of Guinea, 208 F. Supp.
3d 330, 334–35 (D.D.C. 2016).
Plaintiff was hired by the University as a “Campus Operations Specialist” on October 15,
2015. Dkt. 4 at 1 (Am. Compl. ¶ 10). On September 13, 2017, Plaintiff filed an internal
complaint with the University alleging that his then-supervisor, Jessica Choi-Segert,
discriminated against him on the basis of gender. Id. at 2 (Am. Compl.) (Title IX Letter). Upon
receiving Plaintiff’s internal complaint, the University investigated the allegations, “determined
that there was sufficient evidence to substantiate policy violations,” concluded that “there was an
opportunity to increase understanding,” and, to that end, provided Ms. Choi-Segert with
“coaching.” Id. at 2 (Am. Compl.) (Title IX Letter). Having notified the Plaintiff of that
determination and course of action, the University considered the “matter to be closed.” Id.
Plaintiff was less sure and, he therefore “asked to be moved to another department for
fear of retaliation/harassment.” Id. at 1 (Am. Compl. ¶ 5). The University denied that request.
Id. After the denial, Plaintiff began “collecting evidence” to “support his claims of retaliation
and harassment.” Id. at 1 (Am. Compl. ¶ 6). Plaintiff subsequently provided the evidence he
collected to the University’s “lead investigator for the HR department,” but the University took
no action. Id. at 1 (Am. Compl. ¶ 7). On January 3, 2018, Plaintiff “filed [an administrative]
complaint with the U.S. Equal Opportunity Commission” (“EEOC”) alleging that Choi-Segert
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and the University “had committed an unlawful act against [him] in violation of Title IX.” Id.
(Am. Compl. ¶ 9).
On April 13, 2018, the University terminated Plaintiff’s employment. Id. (Am. Compl.
¶ 10). Months later, on September 12, 2018, the EEOC closed its file on Plaintiff’s case and
issued a right-to-sue letter. Id. (Am. Compl. ¶ 9); Dkt. 4 at 9. On December 11, 2018, Plaintiff
timely filed suit, see Dkt. 1 (Compl.), but the Court sua sponte dismissed his complaint without
prejudice because it failed to comply with Federal Rules of Civil Procedure 8, 10, and 11, see
Minute Order (Fed. 4, 2019). On February 26, 2019, Plaintiff filed an amended complaint, Dkt.
4, accompanied by an “affidavit of mailing” attesting that he mailed a copy of the summons and
complaint to Defendants by certified mail on February 2, 2019, see Dkt. 5.
II. LEGAL STANDARD
Rule 12(b)(5) governs motions to dismiss for insufficient service of process. Fed. R. Civ.
P. 12(b)(5). In responding to a motion to dismiss brought under Rule 12(b)(5), the plaintiff bears
the burden of proving that he effected service. Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C. 2003).
“[U]nless the procedural requirements for effective service of process are satisfied, a court lacks
authority to exercise personal jurisdiction over the defendant.” Candido v. District of Columbia,
242 F.R.D. 151, 160 (D.D.C. 2007) (citing Gorman v. Ameritrade Holding Corp., 293 F.3d 506,
514 (D.C. Cir. 2002)). Failure to effect service is grounds for dismissal. See id. at 164 (citing
Fed. R. Civ. P. 4(m)). The Court can, however, “in its sound discretion,” also “direct that service
be effected within a particular period of time.” Wilson v. Prudential Fin., 332 F. Supp. 2d 83, 89
(D.D.C. 2004) (quoting Fed. R. Civ. P. 4(m)).
A motion to dismiss pursuant to Rule 12(b)(6), in contrast, is designed to test the legal
sufficiency of the complaint. Fed. R. Civ. P. 12(b)(6). In evaluating a Rule 12(b)(6) motion, the
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Court “must first ‘tak[e] note of the elements a plaintiff must plead to state [the] claim’ to relief,
and then determine whether the plaintiff has pleaded those elements with adequate factual
support to ‘state a claim to relief that is plausible on its face.’” Blue v. District of Columbia, 811
F.3d 14, 20 (D.C. Cir. 2015) (alterations in original) (internal citation omitted) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 675, 678 (2009)). Although “detailed factual allegations” are not
necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007), “a complaint must contain sufficient factual matter, [if] accepted as true, to ‘state a claim
to relief that is plausible on its face,’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
570). If the Court concludes that the movant’s arguments go beyond the pleadings, the Court
may either deny the motion on that ground or may, where appropriate and with reasonable notice
to the parties, convert the motion to dismiss to one for summary judgment under Rule 56. See
Kim v. United States, 632 F.3d 713, 719 (D.C. Cir. 2011) (citing Fed. R. Civ. P. 12(d)).
III. ANALYSIS
Defendants move to dismiss on three grounds: They argue that Plaintiff has failed to
effect service; that he executed a release; and that the case is subject to binding arbitration. Dkt.
18-1 at 4–5.
A. Ineffective Service of Process
Defendants first argue that the Court should dismiss the action because Plaintiff has
failed to effect service of process. See id. at 7–8. Plaintiff disagrees, asserting that he mailed the
“complaint and summons” to Defendants “by way of US certified mail, return receipt” and that
“[d]elivery . . . to both parties was confirmed and dated February 4th and February 5th.” Dkt. 23
at 1–2. As explained below, even accepting Plaintiff’s factual representations, he has yet to
effect service in the manner required by Rule 4.
4
Under Rule 4, “[t]he plaintiff is responsible for having the summons and complaint
served within the time allowed by Rule 4(m)”—that is, 90 days after the complaint is filed. Fed.
R. Civ. P. 4(c)(1) & (m). An individual may be served in the manner prescribed by the law of
“the state where the district court is located or where service is made;” by “delivering a copy of
the summons and . . . complaint to the individual personally;” 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 by “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). A corporation or partnership may be served
in the manner prescribed by the relevant state law or “by delivering a copy of the summons
and . . . complaint 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
and the statute so requires—by also mailing a copy of each to the defendant.” Fed. R. Civ. P.
4(h). In any event, service must be made by a “person who is at least 18 years old and not a
party” to the lawsuit. Fed. R. Civ. P. 4(c)(2). If service is not made “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.” Fed. R. Civ. P. 4(m).
On February 26, 2019, Plaintiff filed two affidavits of mailing with the Court, attesting
that he mailed a copy of the summons and complaint to Defendants on February 2, 2019, and
that the return receipts confirmed that the materials were delivered on February 4 and 5, 2019.
Dkt. 5 at 1–2. Approximately a month later, he filed two certified mail receipts dated January
31, 2019, and two U.S. Postal Service tracking records, one indicating that a mailing was
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delivered to Benjamin Wellington, who Plaintiff asserts is the associate general counsel of
Apollo Education Group, Inc., on February 5, 2019, and the other indicating that a mailing was
delivered to Jessica Choi-Segert on February 4, 2019. Dkt. 6 at 2–7. Defendants argue that
these filings fail to evidence effective service of process for two reasons.
Defendants first question the sequence of events. As explained above, the Court sua
sponte dismissed Plaintiff’s original complaint on February 4, 2019. In Defendants’ view, this
doomed Plaintiff’s effort to effect service because Plaintiff could not have served his amended
complaint before the Court dismissed his original complaint with leave to amend, and, although
Defendants do not spell this out, they apparently contend that, even if Plaintiff served the
original complaint, that would do him no good, since the Court dismissed that complaint on the
day one defendant allegedly received it and a day before the other defendant received it.
Had Plaintiff properly effected service of the original complaint pursuant to Rule 4 before
the Court dismissed that complaint, he would not have been required to meet the demands of
Rule 4 a second time. Rather, as provided in Rule 5(a)(1)(B), he could have merely served the
amended complaint in the same manner that parties are required to serve all pleadings and
motions after service of the initial pleading. See TCS Capital Mgmt., LLC v. Apax Partners,
L.P., No. 06-cv-13447, 2008 WL 650385, at * 10 –11 (S.D.N.Y. Mar. 7, 2008). Here, however,
the sequence of events is far from clear, and none of the briefs address the legal question whether
service is effected under Rule 4 on the date the summons and complaint are mailed or on the date
that they are received. The Court need not resolve these factual and legal questions, however,
because Defendants’ second challenge to Plaintiff’s efforts to effect service—that, by his own
account, Plaintiff personally mailed the summons and complaint to Defendants—is both
convincing and dispositive.
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Under Federal Rule of Civil Procedure 4(c)(2), a party to the action is not qualified to
effect service. That rule applies even when a plaintiff personally attempts to serve a defendant
by mail. See Olson v. FEC, 256 F.R.D. 8, 10 (D.D.C. 2009) (collecting cases). Thus, even if
Plaintiff had timely mailed both a summons and his pleading, his attempts at effecting service
were still ineffective under Rule 4(c)(2). This case, however, presents a twist on this usually
straightforward rule.
Under Rule 4(e)(1), a person may effect service 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.” Fed. R. Civ. P. 4 (e)(1). Here, the relevant jurisdiction is the District of Columbia.
Although the Court is unaware of any cases from the Superior Court for the District of
Columbia that address whether, under District of Columbia law, a party may effect service by
personally mailing a copy of the summons and complaint, see D.C. R. Civ. P. 4(c)(2), (4)
(restricting service to non-parties but also permitting service by certified mail), several opinions
in this district have assumed that personal service by mail is permissible under D.C. law, see,
e.g., Brodie v. Worthington, No. 09-1828, 2010 U.S. Dist. LEXIS 109119, at *6 (D.D.C. Sept.
27, 2010) (observing, in a pro se matter, that service may be effected under D.C. R. Civ. P.
4(c)(3) by “mailing a copy of the summons, complaint and initial order to the person by
registered or certified mail,” but holding that service was ineffective for other reasons); Byrd v.
District of Columbia, 230 F.R.D. 56, 58 (D.D.C. 2005); see also Handbook for People Who
Represent Themselves in Civil Cases, Superior Court of the District of Columbia, Civil Division,
at 7, available at https://tinyurl.com/v6dckn5 (last accessed January 16, 2020) (instructing pro se
litigants that they may effect service by “mailing a copy of the complaint” and summons by
certified mail). Thus, assuming for present purposes that a party may effect service under D.C.
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law by personally mailing the summons and complaint by certified mail, Plaintiff has at least
arguably complied with that process. The question, then, is whether Rule 4(c)(2)’s restrictions
extend to service made under Rule 4(e)(1). If Rule 4(c)(2) applies to all methods of service
including Rule 4(e)(1), then Plaintiff’s service was defective even though it comported with the
process authorized by D.C. law.
The relationship between Rule 4(c)(2)’s prohibition on who may serve and Rule 4(e)(1)’s
provision of how service may be effected is unclear. The parties have cited no authority, and the
Court can find none, that addresses that question. Cf. Dkt. 22 at 2 (citing Reading v. United
States, 506 F. Supp. 2d 13, 19 (D.D.C. 2007), which addressed the relationship between Rule
4(c)(2) and Rule 4(i)). For the reasons explained below, however, the Court concludes that Rule
4(c)(2)’s restrictions—that is, that the “person” effecting service be at least 18 years old and not
a party to the case—extend to service made under Rule 4(e)(1), even if the relevant state law
allows parties to effect service by personally sending the summons and complaint by certified
mail.
Before considering the current iteration of Rule 4, it is helpful to place the Rule in
historical context. Although the origins of requiring a party to serve a defendant date back “at
least four thousand years,” Kent Sinclair, Service of Process: Rethinking the Theory and
Procedure of Serving Process under Federal Rule 4(c), 73 Va. L. Rev. 1183, 1187 (1987)
(hereinafter, “Sinclair, Federal Rule 4(c)”), the starting point for present purposes is about forty-
years ago. Prior to 1980, the Federal Rules of Civil Procedure limited “who” could effect
service, placing the bulk of the responsibility for effecting service on the United States Marshals
Service. Fed. R. Civ. P. 4(c) (1979 version); Veeck v. Commodity Enter., Inc., 487 F.2d 423, 424
(9th Cir. 1973) (noting that, under a pre-1980 version of Fed. R. Civ. P. 4(c), service of process
8
could be effected only by a “United States Marshal, by his deputy, or by some person specially
appointed by the court”); see also Sinclair, Federal Rule 4(c), at 1198. Like the current version
of the Rule, the pre-1980 version allowed a party to effect service “in the manner prescribed by
the law of the state” in which the district court hearing the dispute was located. Fed. R. Civ. P.
4(d)(7) (1979 version). There was confusion, however, about whether Rule 4’s limitations on
“who” could effect service extended to service “in the manner prescribed under” under state law.
See Fed. R. Civ. P. 4(c), advisory committee note to the 1980 amendment (noting the ambiguity).
Veeck v. Commodity Enterprises, Inc., 487 F.2d 423 (9th Cir. 1973), is illustrative of that
confusion. In that case, a plaintiff had sought to effect service under a California rule that
allowed any nonparty adult to serve a summons. Veeck, 487 F.2d at 425. Because Rule 4, as
written at the time, permitted only a “United States marshal,” “his deputy,” or “some person
specially appointed by the court” to effect service, the Court held that plaintiff’s service was
defective. Id. at 424 (quoting the then-in-effect version of Fed. R. Civ. P. 4). Although the
plaintiff argued that Rule 4’s limit on “who” could serve the complaint did not apply to service
effected in the manner prescribed by state law, the Ninth Circuit disagreed. Id. at 425. The court
stressed that Rule 4 simply provided that a party could effect service in the “manner” prescribed
by state law and distinguished the “manner” of service from “who” may serve the summons and
complaint. Id. (emphasis added). Although not put in these precise words, the idea was that a
rule specifying how the ball must be pitched in softball—i.e., underhand—differs from a rule
specifying who may pitch the ball—i.e., a player on the roster.
Other courts came to the opposite conclusion pre-Veeck, holding that parties who effect
service under state law were exempt from Rule 4(c)’s restrictions on “who” may serve. See, e.g.,
Farr & Co. v. Cia. Intercontinental De Navegacion De Cuba, S. A., 243 F.2d 342, 348–49 (2d
9
Cir. 1957) (holding that Rule 4(c) was “clearly not intended” to limit the provision allowing
parties to serve in a manner prescribed by state law); cf. U. S. for Use of Tanos v. St. Paul
Mercury Ins. Co., 361 F.2d 838, 845 (5th Cir. 1966) (Brown, J., dissenting) (arguing that “4(c)
prescribes who shall make the service if, and only if, the manner of service under 4(e), and thus
state law, must be personal”). Because uncertainty persisted, the Marshals Service continued to
shoulder a significant share of the responsibility for effecting service of process. See Sinclair,
Federal Rule 4(c), at 1197. That responsibility imposed a “serious financial burden” on the
Marshals Service and prompted it to place an “urgent request” that the Advisory Committee
revise the rules to eliminate the role of the federal marshal.” Id. at 1198.
In 1980, the Advisory Committee addressed this concern by revising Rule 4(c) to provide
that “[s]ervice of process may also be made by a person authorized to serve process in an action
brought in the courts of general jurisdiction of the state in which the district court is held or in
which service is made.” Fed. R. Civ. P. 4(c)(1980 version); see also Fed. R. Civ. P. 4(c)(2)
advisory committee note to the 1980 amendment (describing the purpose of the amendment).
Thus, for the first time, persons authorized to effect service by the law of the state in which the
district court sat or in which service was made were also authorized to serve under the federal
rule. Although this change was expected to alleviate the burden on the Marshals Service, it “did
not appear to be sufficient to stem the budgetary tide running against the” service. Sinclair,
Federal Rule 4(c), at 1201.
In 1982, Congress took matters in its own hands. To further liberalize the service of
process rules, it enacted the Federal Rules of Civil Procedure Amendments Act of 1982, Pub. L.
No. 97-462, 96 Stat. 2527 (1983), which implemented “major changes” to Rule 4. Sinclair,
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Federal Rule 4(c), at 1211. The revised Rule, which took effect in 1983, in relevant part, read as
follows:
4(c)(2)(A) A summons and complaint shall, except as provided in subparagraph
(B) and (C) of this paragraph, be served by any person who is not a party and is
not less than 18 years of age.
…
4(c)(2)(C) A summons and complaint may be served . . . (i) pursuant to the law
of the State in which the district court is held for the service of summons or other
like process upon such defendant in an action brought in the courts of general
jurisdiction of that State[.]
Fed. R. Civ. P. 4(c) (1983 version). Under the 1983 Rule, the role of the federal Marshals
Service was reduced by providing that any nonparty adult could effect service. Compare Fed. R.
Civ. P. 4(c)(2)(A) (1983 version); with Fed. R. Civ. P. 4(c) (1980 version) (“Service of process
shall be made by a United States marshal, by his deputy, or by some person specially appointed
by the court for that purpose[.]”).
Notably, the 1983 Rule preserved, at least in part, the portion of the 1980 amendment that
allowed persons authorized by a state law to serve a federal summons and complaint. It did so,
however, only for parties effecting service in specific manners. Specifically, the 1983 version of
Rule 4(c)(2) included a proviso—“except as provided in subparagraph (B) and (C)”—that
relieved parties serving pursuant to state law from the restrictions set out in Rule 4(c)(2)(A).
Fed. R. Civ. P. 4(c)(2)(C) (1983 version). In other words, the 1983 amendment made express
what some courts had inferred before the 1980 amendment: if a party was effecting service
“pursuant to the laws of the state in which the district court” sat, the state law controlled “who”
could effect service. See also Fed. R. Civ P. 4(c) advisory committee note to the 1980
amendment (noting that a remaining ambiguity could be resolved by “specific amendments” to
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the Rule permitting service under state law). Under the 1983 version of the Rule, if a state law
permitted a party personally to serve the summons and complaint by certified mail, then the
plaintiff could do so even though Rule 4(c)(2) generally disqualified parties from effecting
service.
The Rule’s textual clarity was short-lived. In 1993, Rule 4 was amended in a manner that
revived the ambiguity. See Fed. R. Civ. P. 4, advisory committee note to the 1993 amendment.
The 1993 amendment retained the same general rule that nonparty adults may effect service, but
it dropped the proviso that exempted parties serving under state law from the restrictions set out
in Rule 4(c)(2). See Fed. R. Civ. P. 4(c)(2) (1995 version). The Rule as amended in 1993,
stated—without exception—that “[s]ervice may be effected by any person who us not a party
and who is at least 18 years of age.” Id. In relevant respects, that structure persists to this day,
and thus the exception to Rule 4(c)’s limits on who may serve that Congress adopted for parties
serving in a manner prescribed by state law no longer exists.1 In light of that alteration, the
relevant question is whether Rule 4(c)(2) admits an implied exception for parties effecting
service in a manner prescribed by state law. It does not.
Rule 4(c)(2) specifies who is permitted to effect service even when a party effects service
in a manner permitted by state law pursuant to Rule 4(e)(1). That conclusion follows from the
1
Although it might strike one as strange that the Supreme Court, through an amendment to the
Federal Rules of Civil Procedure, can supersede an amendment to the Rules enacted by
Congress, the Rules Enabling Act, 28 U.S.C. § 2072, authorizes it—within limits—to do just
that. Under the Rules Enabling Act, a rule prescribed within the power delegated to the Supreme
Court has the force of a federal statute. See In re Grand Jury Proceedings, 616 F.3d 1186, 1196
(10th Cir. 2010). As a result, if a rule of civil procedure and a statute “‘conflict[] irreconcilably,’
the statute will be deemed superseded . . . unless such supersession would ‘abridge, enlarge, or
modify [a] substantive right.’” United States v. Microsoft Corp., 165 F.3d 952, 958 (D.C. Cir.
1999) (quoting Henderson v. United States, 517 U.S. 654, 663 (1996); 28 U.S.C. § 2072(b)).
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Rule’s text and structure. Most notably, under the current version of the Rule, the restrictions set
out in Rule 4(c)(2) unambiguously extend to Rule 4(e)(2), which governs personal service on an
individual; if they did not, Rule 4(c)(2) would serve no function at all. But there is no textual
basis to conclude that Rule 4(c)(2) extends to Rule 4(e)(2) but not to Rule 4(e)(1), which is found
in the same subsection and is subject to the same introductory clause. Rather, as the Ninth
Circuit explained in 1973, there is a difference between who may effect service and the manner
in which service may be effected. See Veeck, 487 F.2d at 425. In other words, when effecting
service under Rule 4, the federal rule controls who may serve regardless of the manner of service
authorized under state law. The federal rule, in turn, permits only nonparty adults to serve a
summons and complaint, unless the district court directs that the Marshals Service or a person
specifically appointed by the court effect service. Fed. R. Civ. P. 4(c).
Although the text and structure support the conclusion that Rule 4(c)(2) applies to service
under Rule 4(e)(1), the drafting history of Rule 4 arguably cuts the other way. Significantly,
nothing in the Advisory Committee’s commentary to the 1993 amendment signaled that the
Committee intended to undo the exception created by the 1983 amendment. The Advisory
Committee’s note states merely that “[t]he general purpose of [the 1993] revision is to facilitate
service of the summons and complaint.” Fed. R. Civ. P. 4, advisory committee note to 1993
amendment. Restricting parties from using state law procedures that allow more convenient
means of effecting service arguably runs contrary to that stated goal. The note also does not
evince an intent to do away with parties’ ability to serve a summons themselves if permitted to
do so under state law. Indeed, the commentary explains that the Rule 4(e) sets forth the “same
language” as the 1983 Rule “but adds as an alternative the use of the law of the state in which
service is effected.” Fed. R. Civ. P. 4(e), advisory committee note 1993 amendment. In short,
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the Advisory Committee notes do not suggest that the Committee intended to contract the
available means of effecting service.
It is possible that the Advisory Committee simply did not focus on whether dropping the
proviso would deprive plaintiffs of the option of personally serving the summons and complaint
if permitted to do so by state law. But, by the same token, there is little evidence that Congress
intended to provide plaintiffs with that option in the first place when it enacted the Federal Rules
of Civil Procedure Amendments Act of 1982. Rather, the aims of that legislation were to reduce
the burdens on the Marshall Service and to liberalize the requirements for effecting service by
permitting persons other than the Marshall, Deputy Marshal, or a person specified by the court to
effect service. See Sinclair, Federal Rule 4(c), at 1211–12. After the 1983 amendment, the
Federal Rules, like the state laws at issue in Veeck, permitted any nonparty adult to serve. Thus,
when the Advisory Committee revised Rule 4(c) in 1993, it may have seen the exception to Rule
4(c)(2)(A) as surplusage—with or without the proviso, nonparty adults would be allowed to
effect service.
Drafting history aside, the Rule’s text and structure support only one conclusion, and the
case law confirms that conclusion. Although not on all fours with the question at issue here,
courts that have addressed an analogous problem have uniformly held that the restrictions set out
in Rule 4(c)(2) extend to other methods of serving under Rule 4. In particular, courts have held
that parties effecting service on the United States by certified mail under Rule 4(i) cannot mail
the summons and complaint themselves because Rule 4(c) disqualifies parties from serving a
summons. See Smith v. United States, 475 F. Supp. 2d 1, 9 (D.D.C. 2006) (collecting cases). As
one court observed, nothing in Rule 4 suggests that Rule 4(c)(2) and Rule 4(i) “are mutually
exclusive.” Lindsey v. United States, 448 F. Supp. 2d 37, 46 (D.D.C. 2006). Rule 4(c)(2)
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“describes who can make service,” and Rule 4(i) “prescribes the method by which service
. . . can be effected.” Id. So too here. Rule 4(c)(2)’s restriction on who may effect service
applies to every method of service provided for in the Rule, including Rule 4(e)(1). Even if there
is no “apparent reason why a person specified in Rule 4(c)(2), rather than the plaintiff[,]
. . . should be required to mail copies of process to be served,” 4B Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure § 1106, at n.15 (2015 ed.), the text and structure
of the Rule require that result.
The Court, accordingly, concludes that Federal Rule of Civil Procedure 4 does not permit
a party, like Plaintiff, to personally serve a summons and complaint, even if the party is
permitted to do so under the relevant state law.
Plaintiff’s failure to effect service, however, does not warrant dismissal—at least not yet.
Although a plaintiff’s pro se status is not a “license . . . to ignore the Federal Rules of Civil
Procedure,” Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987), “pro se litigants are allowed
more latitude than litigants represented by counsel to correct defects in service of process,” Cruz-
Packer v. District of Columbia, 539 F. Supp. 2d 181, 188 (D.D.C. 2008) (quoting Moore v.
Agency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1972)). Consistent with that principle, courts
“often decline to dismiss” a pro se plaintiff’s case “for defective service” without first affording
the plaintiff the opportunity to correct any errors he or she may have made. Hapugalle v.
Raddatz, 98 F. Supp. 3d 37, 41 (D.D.C. 2015), vacated on reconsideration on other grounds,
2015 WL 4366042 (D.D.C. Jul. 16, 2015). The Court will follow that course here. Rather than
dismiss the case for failure to effect service, the Court will “provide the plaintiff an opportunity
to perfect service,” along “with an admonition that failure to do so will result in dismissal.” Id.;
see also Fed. R. Civ. P. 4(m) (providing that if a defendant is not properly served within the
15
specified time, a court may “order that service be made within a specified time”). Because the
time to effect service under Rule 4(m) has long-since run, the Court will dismiss the action
without prejudice if Plaintiff does not effect service (and does not file proof of having done so)
within 45 days of this decision.
B. The Separation Agreement
Defendants also argue that the Court should dismiss the complaint for failure to state a
claim because Plaintiff previously executed a release of his claims. Dkt. 18-1 at 8–10. As
Defendants recognize, that argument depends whether the Court can, at this stage of the
proceeding, consider the purported release. According to Defendants, the Court can do so
because Plaintiff attached his EEOC right-to-sue letter to his amended complaint, and the right-
to-sue letter “states that the EEOC dismissed Plaintiff’s charge because he ‘signed a valid waiver
of claims.’” Id. at 9 (quoting Dkt. 4 at 9). That contention is a stretch too far.
As a general rule, a court considering a motion to dismiss for failure to state a claim may
not “look outside the facts contained within the four corners of the complaint.” Nat’l Postal
Prof’l Nurses v. United States Postal Serv., 461 F. Supp. 2d 24, 28 (D.D.C. 2006). One
exception to this rule permits a court to consider materials attached to or incorporated by
reference in the complaint. See Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C.
Cir. 2015) (noting that incorporation by reference can “amplify pleadings”). Defendants would
expand this exception to include materials referenced in a document attached to the complaint.
In Defendants’ view, the Court may consider the release that they attach to their motion to
dismiss because the EEOC right-to-sue letter says: “Charging Party signed a valid waiver of
claims.” Dkt. 4 at 9. The Court is unpersuaded. That type of reference to an extrinsic
document, which is neither mentioned in the amended complaint nor conceded by Plaintiff,
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provides insufficient basis to depart from the usual rule. See Sira v. Morton, 380 F.3d 57, 67
(2nd Cir. 2004) (such a “[l]imited quotation from or reference to documents . . . is not enough to
incorporate those documents, wholesale, into the complaint”); see also In re Newbridge
Networks Sec. Litigation, 767 F. Supp. 275, 279 (D.D.C. 1991) (“Extraneous material may be
considered but only if it is attached to the complaint or incorporated by reference and limited
quotation does not constitute incorporation by reference.”).
Defendants premise their argument on three precedents. See Dkt. 18-1 at 10. In the first,
Brown v. United States, the court relied on a settlement agreement in resolving a motion to
dismiss where the complaint alleged that the plaintiff’s employer had breached that agreement.
271 F. Supp. 2d 225, 227 (D.D.C. 2003). The second, Venable LLP v. Overseas Lease Grp.,
Inc., involved a negligence suit that arose from an attorney’s alleged incompetence in negotiating
a settlement agreement. No. 14-cv2010, 2015 WL 4555372, at *3 (D.D.C. July 28, 2015). And
the third, Scott v. Geren, involved a motion to dismiss under Rule 12(b)(1). No. 08-cv-21, 2008
WL 11483536, at *1 (E.D. Va. July 14, 2008), aff’d, 305 F. App’x 81 (4th Cir. 2008).
None of these decisions support Defendants’ argument. Brown and Venable merely
followed the settled rule, which permits a court to consider a document that is “referred to in the
complaint and [that is] central to the plaintiff’s complaint.” Vanover v. Hantman, 77 F. Supp. 2d
91, 98 (D.D.C. 1999), aff'd, 38 F. App’x 4 (D.C. Cir. 2002). Scott provides even less support to
Defendants’ position; that decision involved a motion to dismiss under Rule 12(b)(1), and, unlike
a Rule 12(b)(6) motion, a court resolving a 12(b)(1) motion “may consider such materials
outside the pleadings as it deems appropriate to resolve the question of whether it has jurisdiction
to hear the case.” Daisley v. Riggs Bank, N.A., 372 F. Supp. 2d 61, 66 (D.D.C. 2005).
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Finally, the Court declines to convert Defendants’ motion to dismiss into a motion for
summary judgment. See Fed. R. Civ. P. 12(d). Under Rule 12(d), the Court may convert a
motion to dismiss to a motion for summary judgment, but only if all parties have been “given a
reasonable opportunity to present all the material that is pertinent” to the motion for summary
judgment. Plaintiff has not had such opportunity. Defendants’ motion to dismiss and the
accompanying memorandum did not hint at the possibility of conversion nor did Defendants file
a “a statement of material facts as to which [it] contends there is no genuine issue,” as a party
moving for summary judgment must do under the Local Rules, see L. Civ. R. 7(h)(1). Although
a party represented by counsel might have recognized the possibility of conversion in light of the
attachments accompanying Defendants’ motion to dismiss, Plaintiff is proceeding pro se. It asks
too much to assume that he was on notice that the Court might treat Defendants’ motion as a
motion for summary judgment and that, at the pleading stage, he was expected to offer his own
controverting evidence.
C. The Employee Handbook
This leaves Defendants’ contention that the amended complaint should be dismissed
“because it is subject to a binding arbitration agreement.” Dkt. 18-1 at 10. This argument fails
for the same reasons as the previous one; it relies on documents that are not referred to in the
amended complaint or attached to it. In particular, Defendants rely on an Employee Handbook
that they attach to their motion to dismiss. See Dkt. 18-1 at 11; Dkt. 18-3 (Def.’s Ex. 2); Dkt.
18-4 (Def.’s Ex. 3). Because the Court may not consider that document at this stage of the
proceedings, Defendants’ motion to dismiss on this basis necessarily fails.
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CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss, Dkt. 18, is hereby DENIED.
It is further ORDERED that Plaintiff shall effect service in compliance with Federal Rule of
Civil Procedure 4, and shall file proof of service with the Court, on or before March 20, 2020.
Plaintiff is cautioned that, if he fails to do so and fails to demonstrate that there is good cause for
the Court to extend the time for him to effect service for an appropriate period, the Court will
dismiss this action without prejudice pursuant to Rule 4(m).
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: February 4, 2020.
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