                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-1617


MR. ADRIAN R. SCOTT,

                Plaintiff - Appellant,

           v.

MARYLAND STATE DEPARTMENT OF LABOR, LICENSING & REGULATION;
JENNIFER DASHIELL REED, Director of the Office of Fair
Practices; ALICE L. WIRTH, Deputy Assistant Secretary Office
of Educational & Workforce Skills Training for Correctional
Institutions;   JAMES   YOUNGER,  III,   Principal   Maryland
Correctional Institute; EDWARD W. SCHWABELAND, Principal
Maryland   Correctional   Institute;   RANDOLPH   J.   SHIPE,
Principal Maryland Correctional Institute; LEANN LORENZ,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:14-cv-02432-JFM)


Argued:   September 20, 2016                 Decided:   December 20, 2016


Before NIEMEYER and DIAZ, Circuit Judges, and Irene M. KEELEY,
United States District Judge for the Northern District of West
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: JoAnna M. Esty, MAJESTY LAW GROUP, Middle River,
Maryland, for Appellant.    M. Willis Gunther, OFFICE OF THE
ATTORNEY  GENERAL  OF   MARYLAND,  Baltimore,  Maryland, for
Appellees.    ON BRIEF: Brian E. Frosh, Attorney General of
Maryland, Christopher Bowie Lord, Assistant Attorney General,
Department of Labor, Licensing, and Regulation, OFFICE OF THE
ATTORNEY   GENERAL  OF  MARYLAND,  Baltimore,  Maryland,  for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Adrian R. Scott appeals the district court’s dismissal of

his employment discrimination suit against the Maryland State

Department of Labor, Licensing & Regulation (“DLLR”) and six

DLLR employees for violations of Title VII of the Civil Rights

Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the

Age Discrimination in Employment Act of 1967 (the “ADEA”), 29

U.S.C. § 621 et seq. Finding that the district court did not

abuse its discretion by dismissing the claims against DLLR under

Fed. R. Civ. P. 12(b)(5), and that the six DLLR employees are

not subject to suit in their individual capacities, we affirm

the judgment.



                                        I.

       This case is before us on a motion to dismiss, so we accept

the    factual    allegations      of   Scott’s      complaint   as    true.    See

De’Lonta v. Johnson, 708 F.3d 520, 524 (4th Cir. 2013). Anne

Arundel Community College (“AACC”) contracted with DLLR on a

yearly    basis   to     provide   academic,      occupational,       and   library

instruction at various Maryland correctional institutions. AACC

bore     the   primary    responsibility       for    recruiting      and    hiring

instructors, but DLLR also interviewed and approved candidates.

Beginning in March 2009, AACC employed Scott as an instructor

for the Employment Readiness Workshop at Maryland Correctional

                                         3
Institution – Jessup (“MCI-J”). His contract was renewed every

year until 2012.

        Although       Scott’s    experience      as    a     contract     employee    was

initially satisfactory, it took a decidedly unpleasant turn in

the spring of 2012. During that time, Scott allegedly suffered

sexual and workplace harassment, as a consequence of which he

filed at least three administrative complaints with DLLR. This

action resulted in further harassment and retaliatory behavior

from his immediate supervisor, the MCI-J school principal, and

eventually the replacement principal. Finally, in July 2012, at

DLLR’s direction, AACC refused to renew Scott’s contract. After

that, DLLR advised Scott that, in order to return to work, he

would be required to drop all his complaints and agree not to

file any others. On October 12, 2012, Scott signed an agreement

that allowed him to return to work at a different DLLR facility,

Metropolitan Training Center (“MTC”), located in Baltimore. The

harassment    and       retaliation       resumed      while     Scott     was   at   MTC,

however, and, on October 22, 2012, DLLR again terminated his

employment.

     In September 2012, while between jobs at MCI-J and MTC,

Scott    filed     a    charge     with     the   Equal       Opportunity    Employment

Commission       (“EEOC”)        alleging    that      DLLR    and   its    agents     had

subjected him to discrimination, harassment, and retaliation in

violation of Title VII and the ADEA. The EEOC dismissed the

                                             4
matter because it was “unable to conclude that the information

obtained establishe[d] violations of the statutes.” J.A. 54. It

then issued a Notice of Suit Rights on April 30, 2014, informing

Scott that his EEOC charge had been dismissed and that he had a

right to file suit within 90 days of receiving the notice. On

July    30,     2014,    Scott   filed       a   pro    se    complaint         charging

employment discrimination and naming as defendants DLLR and six

DLLR employees.

       In his complaint, Scott alleged violations of Title VII and

the    ADEA.    More    particularly,    he      alleged     that    the   defendants

wrongfully failed to hire him, terminated his employment, and

failed to promote him, all on the basis of his race, color, sex,

and age. At the time he filed his complaint, Scott chose not to

have    any    summonses    issued.     Instead,       he    sent    a   copy    of    the

complaint to each defendant by certified mail to a satellite

DLLR office located in Baltimore. The administrative office of

DLLR is located elsewhere, however; neither the DLLR secretary

nor    any    registered   agent   is    located       at    the    address     used   by

Scott. Apparently, a mail room employee at the DLLR satellite

office signed for the complaints on August 4, 2014, while at the

Post Office picking up the building’s mail.

       On October 30, 2014, the district court granted Scott’s

request for leave to proceed in forma pauperis and provided him

with specific instructions about how to properly effect service

                                         5
on the defendants through the United States Marshals Service

(“USMS”). In its Order, the district court directed the Clerk to

mail Scott a USMS service form for each defendant, and also

directed Scott to complete the form and return it, together with

a copy of the complaint for each named defendant, within 21

days.

     At the end of its Order, the district court directed the

Clerk to deliver only one copy of the USMS form. According to

Scott, the Clerk only sent him one form, which he addressed to

DLLR and returned to the Clerk’s office on November 20, 2014,

the last day to do so. Scott asked the Clerk’s office what he

should    do   in   order   to   serve    the   other     defendants,    and   was

advised that the Clerk would mail the appropriate forms to him.

The Clerk then issued the summons to DLLR on November 21, 2014.

        The USMS mailed the summons and complaint for DLLR to the

address provided by Scott, by certified mail, return receipt,

and restricted delivery. Despite the district court’s careful

instructions to him about how to obtain an address sufficient

for serving DLLR’s resident agent, Scott directed service to

“Maryland State Department of Labor Licensing Regulation” and

listed the same DLLR satellite office address to which he had

initially mailed the complaints.

     On December 1, 2014, a mail room employee at the satellite

office    accepted    service     of     the    summons    directed     to   DLLR.

                                         6
According       to    this    employee’s       affidavit,             he    later      gave      the

envelope to the Unemployment Insurance Board of Appeals, from

where     it    eventually        wound    its      way        to    the    Office       of     Fair

Practices on or about December 3, 2014. Counsel then noted an

appearance on behalf of all the defendants on December 11, 2014.

In   mid-December,          Scott   again      went       in    person      to     the    Clerk’s

office to pick up the additional USMS forms he had not received

by mail.

       On January 22, 2015, the defendants moved to dismiss the

complaint. On February 2, 2015, the Clerk received additional

USMS    forms       and   service    copies        of     the       complaint      from     Scott.

Although       the   USMS    form   for    DLLR         listed       its   secretary,         Scott

inexplicably         directed     that    service         be     made      at    the   Baltimore

satellite office. The individual defendants’ forms directed that

service        be    made    at     various        addresses,           including         several

correctional         facilities,         and       also     at       the        Baltimore       DLLR

satellite       office.      Ultimately,           the     summonses            were     sent    by

certified mail, return receipt and restricted delivery, and were

executed either on March 9 or 10, 2015.

       On March 10, 2015, Scott’s attorney noted her appearance,

and, on March 12, 2015, the parties consented to a second 30-day

extension of time for Scott to respond to the motion to dismiss,

which he finally did on April 10, 2015. That response addressed

the substantive issues raised in the motion to dismiss, and also

                                               7
included brief requests for an extension of time in which to

cure       service,    if   necessary,     and   also   for    leave   to    file   an

amended      complaint      should   the   Court    find    the   first     complaint

defective. Aside from those embedded requests, Scott never moved

for an extension of the time in which to serve the defendants,

see Fed. R. Civ. P. 6(b), nor did he separately move for leave

to file an amended complaint pursuant to Rule 15(a)(2) and the

Local Rules of the District of Maryland.

       The district court dismissed the complaint on May 7, 2015, 1

finding that Scott had not properly effected service on DLLR,

had    not    served    the   individual       defendants     within   the   120-day

service period, and had failed to show good cause to extend the

service period. It also determined as a matter of law that the

defendants were immune from suit in federal court. It concluded

that the six individual DLLR employees are not proper defendants

under Title VII or the ADEA, that DLLR was not Scott’s employer

under Title VII, and that DLLR was not subject to suit under the

ADEA.




       1
       Because the district court did not state whether the
dismissal was with prejudice, pursuant to Fed. R. Civ. P. 41(b),
“a[n] [involuntary] dismissal . . . operates as an adjudication
on the merits.”



                                           8
                                          II.

     We    review      a   district       court’s          decision      for     abuse     of

discretion where, as here, it dismisses a claim for improper

service    of   process        under   Rule     12(b)(5).      Shao      v.    Link     Cargo

(Taiwan) Ltd., 986 F.2d 700, 708 (4th Cir. 1993). A district

court     abuses    its        discretion       by       failing   to     exercise       any

discretion, failing to apply the proper standard, or by using

“erroneous factual or legal premises.” James v. Jacobson, 6 F.3d

233, 239 (4th Cir. 1993). We review de novo a dismissal under

Rule 12(b)(6). Wag More Dogs, Ltd. Liab. Corp. v. Cozart, 680

F.3d 359, 364 (4th Cir. 2012). The plaintiff bears the burden of

proving     adequate       service      once         a    motion    to        dismiss     for

insufficient service of process has been filed pursuant to Fed.

R. Civ. P. 12(b)(5). See Dickerson v. Napolitano, 604 F.3d 732,

752 (2d Cir. 2010).



                                          III.

     At the time of the events in this case, a plaintiff was

required to     serve      a    summons     and      complaint     on    each    defendant

within 120 days of filing suit. Fed. R. Civ. P. 4(c), (m) (2014)

(amended 2015). However, as we held in Robinson v. Clipse, the

service period of Fed. R. Civ. P. 4(m) is tolled while the

district court considers an in forma pauperis complaint. 602

F.3d 605, 608 (4th Cir. 2010) (“[A]n in forma pauperis plaintiff

                                            9
should    not       be    penalized            for    a    delay      caused             by   the    court’s

consideration            of    his    complaint.”).             If        a    plaintiff          fails      to

effect service within the time required, the district court must

dismiss   the       action          “or    order      that      service             be    made      within    a

specified time.” Fed. R. Civ. P. 4(m) (emphasis added).

     When       a    plaintiff            is    proceeding           in       forma       pauperis,       the

district court must order the USMS to effect service. Fed. R.

Civ. P. 4(c)(3). In the District of Maryland, service upon a

state-created            governmental            organization                 may    be       effected       by

serving   its       chief       executive            officer,        its       designated           resident

agent, or the Maryland Attorney General. Fed. R. Civ. P. 4(j);

Md. Rule 2-124(k). “[T]he real purpose of service of process is

to give notice to the defendant,” Karlsson v. Rabinowitz, 318

F.2d 666, 669 (4th Cir. 1963), and “‘mere technicalities’ should

not stand in the way of consideration of a case on its merits.”

Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17 (1988).

     “[A]ctual            notice,”             however,         is        not        the       controlling

standard. See Mining Energy, Inc. v. Dir., Office of Workers’

Comp. Programs,               391    F.3d      571,       576   (4th          Cir.       2004).     Although

actual    notice         typically          warrants        liberal            construction          of   the

rules, they “are there to be followed, and plain requirements .

. . may not be ignored.” Armco, Inc. v. Penrod-Stauffer Bldg.

Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984).



                                                     10
                                      A.

        We first address the timeliness and sufficiency of service

on   DLLR.    Although   Scott    filed    his   complaint   and    motion   to

proceed in forma pauperis on July 30, 2014, the district court

did not rule on his motion until October 30, 2014. Therefore,

the 120-day period within which Scott was required to serve the

defendants did not run until February 27, 2015. See Robinson,

602 F.3d at 608.

        When the district court granted Scott’s motion to proceed

in forma pauperis, it ordered him to return the proper forms and

service copies of the complaint so that the USMS could effect

service on his behalf. Unfortunately, despite the need to serve

seven defendants, Scott returned only one USMS form to the Clerk

by November 20, 2014. That form directed service on “Maryland

State Department of Labor Licensing Regulation,” rather than its

secretary or resident agent as required by the rules. Fed. R.

Civ. P. 4(j); Md. Rule 2-124(k). Scott also failed to follow the

district court’s instruction to identify the proper address for

service.     Once   again,   he   listed   the   same   Baltimore   satellite

office to which he had sent copies of the complaint three months

before. Nevertheless, service of this complaint and summons to

DLLR was accepted at the address Scott provided on December 1,

2014.



                                      11
        After    the    defendants        moved      to       dismiss   his       complaint         on

January       22,     2015,    Scott      returned        additional        copies          of    the

complaint       and    USMS    forms      to   the       Clerk    on    February        2,       2015.

Although he listed the secretary of DLLR on the USMS forms,

Scott again directed service on DLLR at the Baltimore satellite

office. This second attempt at service was delayed, through no

fault    of     Scott,       until    after      the      expiration        of    the       120-day

period.    The       Clerk     inexplicably         delayed      issuing         the   summonses

until    February       26,     2015,     and,      as    a    consequence,        the       second

summons to DLLR was not executed until March 9, 2015. 2

     We       have     previously         recognized          that     in   forma       pauperis

plaintiffs “must rely on the district court and the [USMS] to

effect    service,”          and    should     not       be    penalized         for    delay       in

service beyond their control. See Robinson, 602 F.3d at 608-09

(citing Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995)

(“The     prisoner       may       rely   on   the       Marshals       Service        to    serve

process, and the Marshals Service's failure to complete service

is automatically ‘good cause’ to extend time for service under

Rule 4(m).”)); see also Wright v. First Student, Inc., 710 F.3d

782, 783-84 (8th Cir. 2013) (“[I]f the delay in service was the

     2 Although the district court’s docket reflects that a
summons was returned as having been executed on DLLR, the
returned executed summons itself is absent from the record. For
the purpose of this analysis, we assume that the summons was, in
fact, served at the address Scott provided on the USMS form.



                                               12
result of a delay by court staff or the USMS in fulfilling their

obligations, [the plaintiff’s] complaint should not have been

dismissed under Rule 4(m).”). Here, the March 9, 2015, service

of process occurred after the 120-day period expired on February

27, 2015. Because that delay was outside of Scott’s control, and

solely    attributable     to    the    Clerk     and    the       USMS,   pursuant    to

Robinson we find good cause for the delay and conclude that

Scott’s attempt at service was timely.

      Nevertheless, both of Scott’s timely attempts to serve DLLR

were insufficient despite the fact that DLLR received actual

notice of the suit. Actual notice does not equate to sufficient

service of process, even under the liberal construction of the

rules applicable to a pro se plaintiff. See, e.g., Crowley v.

Bannister, 734 F.3d 967, 975 (9th Cir. 2013) (“Neither actual

notice,     nor   simply   naming      the   person      in    the    caption   of    the

complaint, will subject defendants to personal jurisdiction if

service was not made in substantial compliance with Rule 4.”);

Precision Etchings & Findings, Inc. v. LGP Gem, Ltd., 953 F.2d

21, 24 (1st Cir. 1992) (“Although ‘minor’ formal defects are

excusable provided actual notice has been accomplished, . . .

the   rule   nevertheless       must    be     accorded       at   least   substantial

compliance.”).

      The    requirements       for    serving    a     state-created       government

agency are clear, and we note that the district court rendered

                                          13
Scott     additional          assistance       by    providing         a    website     and     a

telephone          number    where     he    could   obtain        the     proper    name     and

address       for       serving      DLLR’s      resident          agent.      Despite        his

obligation         to   do   so,     Scott    failed       to    direct     service    to     the

proper address both in November 2014 and also in February 2015;

instead, he directed that service be made at a satellite DLLR

office. See Lee v. Armontrout, 991 F.2d 487 (8th Cir. 1993)

(“[I]t       [is    the     plaintiff’s]      responsibility           to   provide     proper

addresses for service . . . .”). We find this error to be more

than     a    “mere       technicalit[y],”           and        that   actual       notice     is

incapable of curing such a substantial defect in service. See

Torres, 487 U.S. at 316-17. To hold otherwise would eviscerate

the clear requirements of Rule 4. See Armco, Inc., 733 F.2d at

1089.

                                               B.

       Scott argues that he has shown good cause for his failure

to   properly        serve     DLLR,    and    the     district        court    should       have

granted his request to extend the time to effect proper service.

We disagree.

        Rule 4(m) requires extension of the 120-day service period

only when the plaintiff can show good cause for his failure to

serve. Fed. R. Civ. P. 4(m); Mendez v. Elliot, 45 F.3d 75, 78

(4th Cir. 1995); see also Nafziger v. McDermott Intern., Inc.,

467 F.3d 514 (6th Cir. 2006) (“Establishing good cause is the

                                               14
responsibility of the party opposing the motion to dismiss . . .

and ‘necessitates a demonstration of why service was not made

within the time constraints.’”). Because the question of what

constitutes “good cause” necessarily is determined on a case-by-

case basis within the discretion of the district court, courts

have declined to give it a concrete definition, preferring to

analyze a number of factors. These include whether: 1) the delay

in service was outside the plaintiff’s control, 2) the defendant

was    evasive,        3)     the    plaintiff      acted       diligently         or    made

reasonable       efforts,      4)    the   plaintiff       is   pro    se    or    in    forma

pauperis,       5)    the     defendant     will    be     prejudiced,        or    6)    the

plaintiff asked for an extension of time under Rule 6(b)(1)(A).

See Kurka v. Iowa Cty., Iowa, 628 F.3d 953, 957 (8th Cir. 2010);

Dickerson, 604 F.3d at 752. In addition, the Supreme Court has

“never    suggested           that   procedural       rules       in     ordinary       civil

litigation should be interpreted so as to excuse mistakes by

those who proceed without counsel.” McNeil v. United States, 508

U.S. 106, 113 (1993).

       Under the facts in this case, we agree with the district

court that Scott did not demonstrate good cause for his repeated

failure     to       effect    proper      service.      Even     acknowledging          that

Scott’s pro se status may have contributed to the shortcomings

in    service    of    process,      his   status     is    not    the      only   relevant

factor    a      district       court      should     consider.        Although         Scott

                                            15
admittedly     made   multiple      attempts     at     service,   those    efforts

lacked diligence and reasonableness.

     Scott relies heavily on the fact that the Clerk sent him

only one copy of the USMS form. However, he has never explained

why he failed to inquire about additional forms at the Clerk’s

office and waited to return the one form for DLLR until the

final day on which he had been directed to do so. Moreover, the

Clerk’s error was not so onerous as to prevent him from taking

simple steps, such as making copies of the USMS form, to cure

the problem. We find it even more confounding that the forms he

claims   he    retrieved     in   person   in    mid-December      2014    were   not

submitted to the Clerk for nearly two months.

     Setting aside issues of timeliness, service of process on

DLLR was insufficient on both occasions for the sole reason that

Scott    refused      to     follow     the     district       court’s      specific

instructions about how to find the proper service address for

DLLR. In the second instance, he could simply have copied it

directly from the defendants’ motion to dismiss into the “Serve

At” line of the USMS form. The only justification Scott has

provided for his repeated failure is that he “is not a savvy

internet      user   and    did   not   understand       the   relevance     of   the

reference       to    the     resident        agent.”     Such     a      subjective

misunderstanding       of     procedural        requirements       cannot    excuse

Scott’s noncompliance. See McNeil, 508 U.S. at 113 (“[R]ules of

                                         16
procedure       are    based       on    the    assumption     that    litigation     is

normally conducted by lawyers.”).

     Even Scott’s attorney, after noting her appearance, did not

file a motion pursuant to Fed. R. Civ. P. 6(b) seeking to extend

the time in which to serve. Instead, she added a brief, one-

sentence       request      for    an     extension    in    her   response    to    the

defendants’ motion to dismiss, which was not filed until nearly

one month after she noted her appearance. We note that she also

included       a     one-paragraph        request     for    leave    to   amend      the

complaint if the complaint was found “deficient and subject to

dismissal.” J.A. 186. Despite the elapse of one month between

her appearance and the filing of any response, Scott’s attorney

failed    to       comply   with    the    District    of    Maryland’s    local     rule

requiring that she both attempt to obtain consent of opposing

counsel     and       attach       the     proposed     amended       complaint. 3     In

consideration of all these facts, we conclude that the district

court did not abuse its discretion by dismissing the complaint

for insufficient service of process. 4



     3   District of Maryland Local Rule 103.6(a).
     4 Scott’s attorney urges us to view the defendants’ motion
to dismiss as a motion to quash. See Vorhees v. Fischer &
Krecke, 697 F.2d 574, 576 (4th Cir. 1983) (“[T]he statute of
limitations had run on the plaintiffs’ various causes of action
. . . the action should not have been dismissed until the
plaintiffs were given a reasonable opportunity to attempt to
effect valid service of process on the defendant.”). We are
(Continued)
                                               17
                                         C.

      We turn next to the question of whether the district court

properly dismissed the claims against the individual defendants.

As discussed earlier, based on Scott’s in forma pauperis status,

his March 2015 attempts to serve the individual defendants were

timely.      Nevertheless,       regardless   of   whether   the   individual

defendants were properly served, the district court correctly

concluded that the violations of Title VII and the ADEA alleged

in the complaint failed to state a claim for relief against

them.

      In Birkbeck v. Marvel Lighting Corp., we held that “the

ADEA limits civil liability to the employer,” and that Congress

did not intend to impose personal liability on an employer’s

agents. 30 F.3d 507, 510-11 (4th Cir. 1994). Likewise, in Lissau

v. Southern Food Services, Inc., interpreting similar language

in   Title    VII,   we   held    that   individuals   are   not   subject   to

liability under that statute. 159 F.3d 177, 180-81 (4th Cir.

1998). Therefore, we agree with the district court that, whether




under no obligation to do so. Scott had a reasonable opportunity
to effect valid service, and he failed to do so on multiple
occasions. Moreover, the district court dismissed the case more
than two months after the service period had expired; at no time
did it cut short Scott’s chance at proper service.



                                         18
they were properly served or not, the individual defendants are

not appropriate parties to this lawsuit.



                               IV.

     For the reasons discussed, the judgment of the district

court is

                                                      AFFIRMED.




                               19
