                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-1-1996

Ayres v. Jacobs & Crumplar PA
Precedential or Non-Precedential:

Docket 95-7676




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Recommended Citation
"Ayres v. Jacobs & Crumplar PA" (1996). 1996 Decisions. Paper 21.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/21


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                       _________________

                            No. 95-7676
                         _________________

                         CAROLINE P. AYRES,
                                       Plaintiff-Appellant,

                                 v.

 JACOBS & CRUMPLAR, P.A.; ROBERT JACOBS, individually and as an
agent/senior partner; THOMAS C. CRUMPLAR, individually and as an
agent/senior partner; DOUGLAS B. CANFIELD, individually and as an
                     agent/senior partner,
                                    Defendants-Appellees.
                       _________________

        On Appeal from the United States District Court
                  for the District of Delaware
               D.C. Civil Action No. 94-cv-00658
                        ________________

  Submitted Under Third Circuit LAR 34.1(a) September 20, 1996

       Before:   Nygaard, Roth, and Rosenn, Circuit Judges

                    Filed November 1, 1996
                       _________________

Caroline P. Ayres-Fountain, Pro Se
503 West Ninth Street
P.O. Box 85
Wilmington, DE 19899


Thomas S. Neuberger, P.A.
Thomas Stephen Neuberger, Esq.
200 West Ninth Street
Suite 702
Wilmington, DE 19801
Counsel for Appellees

                         __________________

                         OPINION OF THE COURT
                          _________________

Rosenn, Circuit Judge.

              This appeal presents basic but serious questions
pertaining to essential procedures to obtain personal
jurisdiction over defendants in a civil action filed in a federal
district court. The issues raised not only pertain to the
sufficiency of the process to obtain personal jurisdiction but
also to the effective service of process. The United States
District Court for the District of Delaware dismissed the
complaint and directed the Clerk to enter judgment for the
defendants. The plaintiff timely appealed. We affirm.

                                I.
         Caroline P. Ayres, the plaintiff, has been a licensed
Delaware attorney since 1984. Jacobs & Crumplar, P.A., a
Wilmington, Delaware law firm, employed her as an associate from
December 1988 until August 1993 when they terminated her. On
December 7, 1994, the plaintiff filed a complaint pro se,
challenging the termination of her employment by the defendants,
Jacobs & Crumplar, and its individual partners. She did not
request the Clerk of the Court to issue a signed summons with a
seal of the court affixed thereto, but she obtained copies of
summonses, filled in the name and address of defendants, and on
December 29, 1994, she had a process server agency serve the
complaints and the unsigned summons on each of the defendants.
Service was accomplished by the process server by leaving the
documents with the office manager, Donna Dobbs, of Jacobs &
Crumplar. The plaintiff duly filed proofs of service.
         On January 18, 1995, the defendants filed their answer
and moved to dismiss under Federal Rules of Civil Procedure (Fed.
R. Civ. P.) 12(b)(4) and (5). The court initially denied the
motion because the defendants failed to support it with a brief
as required by the Local Rules. The parties then proceeded with
discovery. On July 31, 1995 (within the September 12, 1995
deadline fixed by the court for depositive motions), the
defendants renewed their motion to dismiss, this time filing a
supporting brief as required by the Local Rules. The court
stayed discovery and granted the defendants' motion to dismiss.
         In their motion, the defendants move to dismiss on two
separate and distinct grounds. First, they claim a deficiency in
process due to the plaintiff's failure to obtain the Clerk's
signature on the summonses and to have the seal of the court
affixed. Second, they maintain that the office manager at Jacobs
& Crumplar had no authority to accept service on behalf of a
professional association or the individuals and the service,
therefore, was defective. The district court concluded that the
plaintiff had provided no excuse for her failure to comply with
the Rule relating to service "other than the fact that she simply
did not think the `technical niceties' of service of process
important." The court found that "such disregard for the Rules
is inexcusable. Under the circumstances, the court can find no
justification for permitting an amendment to the summons or for
extending the deadline for service." The court further found
that the defendants had not waived their service and process
defenses and dismissed the action. The plaintiff timely
appealed.

                               II.
         On appeal, the plaintiff reiterates the arguments she
submitted to the district court. In substance, she contends that
the court erred in not finding that the defendants had waived all
claims to failed process and that she had made a good faith
effort to serve the defendants. She asserts that she had
effectuated valid service on the individual defendants by serving
them "at their usual place of abode, their law firm," and that
the court erred in not finding that service upon the professional
association was perfected by serving its office manager. She
further contends that the district court erred in not granting
leave for reservice upon the defendants and in not following the
general rule that Fed. R. Civ. P. (4)(m) requires dismissal only
where there is a complete lack of service on the defendant.
         Fed. R. Civ. P. 4(h)(1) requires that service on a
corporation be to "an officer, a managing or general agent, or to
any other agent authorized by appointment or by law to receive
service of process . . .." In this case, the documents were
delivered to the firm's office manager; the plaintiff does not
dispute that the office manager does not, in actuality, fall into
any of these categories.
         Plaintiff, rather, relies on two arguments: That the
office manager had apparent authority to accept process, and
that, in any event, the purpose of the service rule (i.e., to
ensure notice) had been fulfilled. The district court properly
disposes of the first argument by noting that as plaintiff had
been employed at the firm and knew or should have known that the
office manager lacked actual authority, she was not in a position
to rely on apparent authority. In regard to the second point, we
note that although it is true that one of the purposes of the
rules regarding service of process is to provide notice, Grand
Entertainment Group Ltd. v. Star Media Sales Inc., 988 F.2d. 476,
486 (3rd Cir. 1983), this court has made clear that "notice
cannot by itself validate an otherwise defective service." Id.at 492.
         The district court also rejected plaintiff's contention
that the defendants waived their service and process defenses by
not presenting them sufficiently clearly and in a timely manner
(thereby "sandbagging plaintiff" by proceeding with discovery).
The district court properly found plaintiff's position to be
contrary to the Federal Rules of Civil Procedure and unsupported
by precedent.
         The defendants included in their January 18, 1995
answer a motion to dismiss based in part on Rule 12(b)(4) and
(5). Although the motion was rejected because of the defendants'
failure to append a brief (as required by local court rules), the
motion was re-submitted within the requisite period set by the
court, supported by brief, and served to put the plaintiff on
notice that service and process had been improper. Plaintiff
could have, but did not, validly effectuate service within the
120-day deadline.
         The court properly rejected the plaintiff's argument
that the defendants have waived their defenses by engaging in
discovery and attending scheduling conferences. As the
defendants point out, when confronted with an 18-count complaint
seeking $28 million in relief, it is prudent to proceed with
one's case while awaiting determination of motions to dismiss.
         We, furthermore, see no merit in the plaintiff's
contention that the district court erred in refusing to extend
the 120-day period for service of process.
         Fed. R. Civ. P. 4(m) provides:
         If service of the summons and complaint is
         not made upon a defendant within 120 days
         after the filing of the complaint, the court
         . . . shall dismiss the action without
         prejudice . . . or direct that service be
         effected within a specified time; provided
         that if the plaintiff shows good cause for
         the failure, the court shall extend the time
         for service for an appropriate period.

In this circuit, the district court's determination with respect
to good cause is reviewed for abuse of discretion. Braxton v.
United States, 817 F.2d. 238, 242 (3d Cir. 1987). The district
court's determination in this case (that plaintiff's disregard
for what she considered the "technical niceties" of service of
process, see supra p. 3, does not constitute good cause) is in
line with the precedent of this court. See, e.g., Petrucelli v.
Bohringer & Ratzinger, 46 F.3d 1298, 1307 (3d Cir. 1995)
(inadvertence, "half-hearted" efforts, and misplaced reliance
does not constitute good cause).

                               III.
         We turn now to the sufficiency of the process. We
believe that a careful analysis of the law pertaining to the
issuance and function of the summons would have saved the parties
considerable time and discovery and spared judicial resources.
The issuance of a summons signed by the Clerk, with the seal of
the Court, and the time designated within which defendant is
required to appear and attend, are essential elements of the
court's personal jurisdiction over the defendant. "A summons is
process because its service subjects the person served to the
court's jurisdiction, which is necessary to validate a judgment
that the court might render against the person." Fed. R. Civ. P.
4 28 U.S.C.A. Practice Commentary C4-4 (1992 & Supp. 1996).
         In the instant case, the plaintiff never requested the
Clerk to issue a summons nor did he. The Clerk neither signed it
nor affixed the seal of the Court as required by Rule 4. The
plaintiff avers in her affidavit that she prepared the summons in
this action and took "a copy of the summons supplied by the Clerk
of this court and filled in the name and address . . . for each
defendant." She then engaged a process server and plaintiff
appeared in the Clerk's office the next day to file the proofs of
service. A staff person called to her attention without other
comment that the summons did not contain the Clerk's signature
and docketed the return.
         The failure of a plaintiff to obtain valid process from
the court to provide it with personal jurisdiction over the
defendant in a civil case is fatal to the plaintiff's case. The
parties cannot waive a void summons. A district court must not
only have subject matter jurisdiction over the litigation before
it, but also personal jurisdiction over the defendants. A court
may not go through the sterile exercise of acting in a vacuum to
adjudicate a legal dispute. It must have parties as well as an
actual controversy. In order to impose personal liability upon a
defendant or obligate him or her in favor of a plaintiff, a court
must be vested with jurisdiction over the parties as well as
subject matter jurisdiction. Notice of a claim is not
sufficient.
         It is fundamental that before a court may
         impose upon a defendant a personal liability
         or obligation in favor of the plaintiff or
         may extinguish a personal right of the
         defendant it must have first obtained
         jurisdiction over the person of the
         defendant.

Lohman v. Lohman, 626 A.2d. 384, 390 (Md. 1993).
         Fed. R. Civ. P. 4 sets forth the procedure by which a
court obtains personal jurisdiction over the defendant. Rule
4(a) specifically provides in pertinent part: "The summons shall
be signed by the Clerk, [and] under the seal of the court." As
the Commentaries to the Rule point out, the Rule is comprehensive
and "a mistake in its use can be fatal." Fed. R. Civ. P. 4 28
U.S.C.A. Practice Commentary C4-1 (1992 & Supp. 1996). The
process is a two-step procedure: first, a complaint must be
filed with the Clerk of the Court where the Clerk issues a
summons to the plaintiff or the plaintiff's attorney who shall be
responsible for service and, second, the summons and a copy of
the complaint must be effectively and timely served upon the
defendant. Requiring the Clerk to sign and issue the summons
assures the defendant that the process is valid and enables the
Clerk to collect whatever filing fees are required.
         A summons which is not signed and sealed by the Clerk
of the Court does not confer personal jurisdiction over the
defendant. 2 James W. Moore, Moore's Federal Practice ¶ 4.05 (2d
ed. 1996) ("Under Rule 4(b) only the clerk may issue the summons
. . . [A] summons issued by the plaintiff's attorney is a
nullity."); see also 4a Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1084 (2d ed. 1987). Upon proper
motion, or if the defendant raises the matter in the responsive
pleading, such suit should be dismissed under Fed. R. Civ. P.
12(b)(2). Thus, under such circumstances, it becomes unnecessary
for the district courts to consider such questions as whether
service was properly made, or whether an extension to the 120-day
service period should be granted under Rule 4(m). Nor is it
necessary for the district court to characterize such improper
issuance as showing a flagrant disregard for the rules. That
sort of analysis is useful in determining under Rule 4(m) whether
plaintiffs had good cause for their failure to make service
within 120 days, but serves no purpose here.

                               IV.
         In sum, we hold that a summons not issued and signed by
the Clerk with the seal of the court affixed thereto fails to
confer personal jurisdiction over a defendant even if properly
served. We further hold that a summons when properly issued is
not effective in conferring personal jurisdiction upon a
partnership or individual if it is not served in accordance with
Rule 4 of the Fed. R. Civ. P. unless service has been effectively
waived. In this instance, there was no such waiver.
         Accordingly, the judgment of the district court will be
affirmed. Costs taxed against the appellant.
