                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-20-2008

Carter v. Marmon Keystone
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1996




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Recommended Citation
"Carter v. Marmon Keystone" (2008). 2008 Decisions. Paper 1193.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1193


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-1996
                                      ___________

                               ANTHONY CARTER, SR.,
                                                   Appellant

                                            v.

                              MARMON KEYSTONE
                      ____________________________________

                     On Appeal from the United States District Court
                             for the District of Delaware
                         (D.C. Civil Action No. 05-311-MPT)
                          Magistrate Judge Mary Pat Thynge
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 1, 2008
            Before: SLOVITER, BARRY and GREENBERG, Circuit Judges

                              (Opinion filed: May 20, 2008)
                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

       Appellant, Anthony Carter, Sr., appeals pro se from the District Court’s dismissal

of his complaint. For the reasons that follow, we will affirm.

       On May 19, 2005, Carter filed a complaint in the United States District Court for

the District of Delaware alleging that his employer, Marmon Keystone, terminated him on
account of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e, et seq. On September 20, 2005, Carter mailed a Notice of Lawsuit and Request

for Waiver of Service of Summons to the Human Resources department at Marmon

Keystone. Carter, however, failed to attach a copy of the complaint to his request, in

violation of Rule 4(d)(1)(C) of the Federal Rules of Civil Procedure. As a result,

Marmon Keystone refused to waive service, and, because the 120-day service period had

then expired, see Fed. R. Civ. P. 4(m), moved to dismiss the complaint for insufficient

process and insufficient service of process. See Fed. R. Civ. P. 12(b)(4) and (5).

       By order entered April 7, 2006, the District Court, mindful of Carter’s pro se

status, provided him with another 30 days to properly serve the defendant. See Fed. R.

Civ. P. 4(m). Carter then served Marmon Keystone with a Summons in a Civil Case, with

which he was also required to provide a copy of the complaint. See Fed. R. Civ. P.

4(c)(1). Here, too, Carter failed to include his complaint. Consequently, Marmon

Keystone renewed its motion to dismiss under Rules 12(b)(4) and (5). See Fed. R. Civ. P.

12(b)(4) and (5).

       The parties subsequently consented to jurisdiction before the Honorable Mary Pat

Thynge, United States Magistrate Judge. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. By

order entered March 29, 2007, Magistrate Judge Thynge granted Marmon Keystone’s

motion and dismissed Carter’s complaint without prejudice. The present appeal followed.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 636(c)(3) and 28



                                             2
U.S.C. § 1291.1 Our review of the District Court’s dismissal is plenary. See Umbenhauer

v. Woog, 969 F.2d 25, 28-29 (3d Cir. 1992).

       The Magistrate Judge properly granted Marmon Keystone’s motion to dismiss.

Carter was given two opportunities to properly effect service of process or obtain a

waiver of service from Marmon Keystone. Carter, however, failed to comply with the

requirements of Rule 4 on either occasion. Therefore, we see no error in the Magistrate

Judge’s order granting Marmon Keystone’s motion under Rules 12(b)(4) and (5). See

Fed. R. Civ. P. 12(b)(4), (5).

       We will affirm the Magistrate Judge’s order dismissing the complaint.




   1
     Although the Magistrate Judge dismissed Carter’s complaint without prejudice, the
dismissal order is appealable because Carter is now time-barred from re-filing his
complaint. See Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir. 2002) (holding that an
order dismissing a claim without prejudice is an appealable order if the statute of
limitations for that claim has expired).
