UNPUBLISHED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Affirmed by unpublished per curiam opinion.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 
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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Unpublished opinions are not binding precedent in this circuit.
3

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 
4

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 
5

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 
6

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. 
7

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 
8

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.”
9

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 
10

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).
11

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.
12

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.
13

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
14

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 
15

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-bycase 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
16

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
17

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, onesentence 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)
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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.
19

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.