**UN PUBLISHED** 
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 Ins titute; 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

- c v - 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 un published 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 , for2 Appellee s . **ON BRIEF** : Brian E. Frosh, Attorney Gener al of Maryland, Christopher Bowie Lord, Assistant Attorney General, Department of Labor, Licensing, and Regulation, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee s . Unpublished opinions are not binding precedent in this ci rcuit.3 PER CURIAM: Adrian R. Scott appeals the d istrict court’s dismissal of his employmen t discrimination suit against the Maryland State Department of Labor, Licensing & Regulation (“DLLR”) and six
DLLR employees for violations of Title VII of t he Civ il Rights Act of 1964 (“Title VII”) , 42 U.S.C. § 2000e et seq. , and t he 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 i s before us on a motion to dismiss , so we accept the factual allegations of Scott’s complaint as true
. See
De’ L onta 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 correctio nal 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 Rea diness Workshop at Maryland Correctional4 Institution

– Jessup (“MCI

- J”)
. His contract was renewed every year until 2012. Although Scott’s exper ience 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 file d 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 allow ed him to return to work at a different DLLR facility, Metropolitan Training Center ( “MTC”) , located in Baltimore. The harassment and retaliation resumed while Scot t was at MTC , however, and , on October 22, 2012, DLLR again terminated his employment

. In September 2012, while b etween jobs at MCI

- J and MTC , Scott filed a c harge with the Equal Opportunity Employment Commission (“EEOC”) alleging t hat DLLR and its agents had subjected him to discrimination, harassment, and retaliation in violation of Title VII and the ADEA . T he EEOC dismissed the5 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 ch arge had been dismissed and that he had a right to file suit within 9 0 days of receiving the notice. On July 30, 2014, Scott filed a pro se complaint charging

e mploy men t d iscrimination 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 fai led 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

. T he 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 th e 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 properl y effect service6 on the defendants through the United S tates Marshal s Service (“USMS”)
. In its O rder , the district court directed the C lerk 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 , with in 21 days

. At the end of its O rder , the district c ourt directed the
C lerk to de liver only one copy of the USMS form. According to Scott, the C lerk only sent him one form, which he addre ssed to DLLR and returned to the Clerk’s office on November 20, 2014, the last day to do so

. Scott as ked the Clerk’s office what he should do in order to serve the other defendants , an d was advised that th e Clerk would mail the appropriate forms to him

. The Clerk then issued the summons to DLLR on November 21, 2014. The USMS mai led the summons and complaint for DLLR to the address provided by Scott, by certified mail, return receipt , and rest ricted delivery

. Despite the district court’s careful instructio ns 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 s atellite office address to which he had initially mailed th e complaints

. O n December 1, 2014 , a mail room employee at the satellite office accepted se rvice of the summons directed to DLLR
.7 According to t his 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 t he additional USMS forms he had not received by mail. On January 22, 2015, the defendants moved to dismiss the complaint

. O n February 2, 2015, the C lerk received additional
USMS forms and service copies of the complaint from Scott

. Although the USMS form f or DLLR list ed 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 th e Baltimore DLLR satellite office

. Ultimately, t he 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 r espond 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 also8 i ncluded brief requests for an extension of time in which to cure service , if necessary , and also for lea ve to file an amended c omplaint should the C ourt find the first complaint defective. Aside from those embedded requests, Scott never moved for an extens ion of the time in which to serve the defendants,

see Fed . R. Civ. P. 6(b), n or 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 dete rmined as a matter of law that the defendants were immune from suit in federal court. I t concluded that the six individual DLLR employees are not proper defendants under Title VII or the ADEA , that DLLR was not S cott’s employer under Title VII , and that DL LR 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 dismiss es 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 D ogs, Ltd. Liab. Corp. v. Cozart , 680 F.3d 359, 364 (4th Cir. 2012). T he 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, a s 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 pauperi s plaintiff10 should not be penalized for a delay caused by the court’s consideration of his complaint.”). If a plaintiff fai l s to effect service within the time required , the district court must dismiss the action “ or order that service be made within a
spe cified 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 organizatio n may be effected by serving its chief executive officer, its designated resident agent, or the Maryland Attorney General. Fed. R. Civ. P . 4(j);
M d

. Rule 2

- 124(k). “[T]he real purpose of service of process is to give notice to the defendant, ” K arlsson v. Rabinowitz , 318 F.2d 666, 66 9 ( 4th Cir. 1963), and “‘m ere technicalities’ should not stand in the way of consid eration of a case on its merits. ” Torres v. Oakland Scavenger Co. , 487 U.S. 312, 316

- 17 (1988). “[A] ctual notice , ” however, is not th e 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 h is 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,
t he 120

- day period with in which Scott was required to serve the defendants did not run until February 27 , 2015. See Robinson , 602 F.3d at 608.
W hen 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, des pite 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

se cretary or resident a gent as required by the rules

. Fed. R. Civ. P. 4(j); M d

. Rule 2

- 124(k). Sc o t t also failed to follow the district court’s instructi on to identify the proper address for service

. O nce again , he listed the same Baltimore satellite office to which he had sent copies of the complaint three months before

. Nevertheless, s ervice 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. Thi s second attempt at service was delayed, through no fault of Scott, until after the expiration of the 120

- day period. The Clerk inexplicably delayed issu ing the summonses until February 26, 2015, and, a s a consequence, the second
summons to DLLR was not ex ecuted unti l 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 a t 608

- 09 (citing Graham v. Satkoski , 51 F.3d 710, 713 (7 th Cir. 1995) ( “The prisoner may rely on the Marshals Service to serv e process, and the Marshals Service's failure to complete service is automatically ‘good cause’ to extend time for service under
Ru le 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 be en dis missed under Rule 4(m).”). Here, t he March 9, 2015 , service of process occurred after the 120

- day peri od 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 d elay and conclude that
Scott’s attempt at service was timely. Nevertheless, b oth of Scott’s timely attemp ts to serve DLLR were insufficient despite the fact that DLLR received actua l notice of the suit

. A ctual notice do es 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 (9 th 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 c ourt rendered14 Scott additio nal assistance by providing a website and a tele phone number where he could obtain the proper name and address for serving DLLR’s resident agent. D espite his obligation to do so, S cott failed to direct service to the proper addre ss 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 t his error to be more than a “mere technicalit[y],” and that actual notice is in capable 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 In t ern., Inc. , 467 F.3d 514 (6th Cir. 2006) (“Establishing good cause is the15 responsibility of the party opposing the motion to dismiss . . . and ‘necessitates a demonstration of why service was not made within the time constraints.’”). Because t he question of what constitutes “g ood cause” necessarily is determined on a case

- by

case basis within the discr etion of the district court, courts have declined to give it a concrete definition, preferring to analyze a number of factors. These include w hether : 1) the delay in service was o utside 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 (8 th 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 dist rict court that Scott did not demonstr ate 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 Scott16 admittedly made multiple attempts at service, those efforts lacked diligence and reasonable ness . Scott relies heavily on the fact that the Clerk sent him only one copy of the USMS form. H owever, he has never explain ed 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 fr om 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.
S etting 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, h e 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 repea ted 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 of17 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 exte nd the time in which to serve. Instead, sh e 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

. W e note that she also included a one

- paragraph request for leave to amen d 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

r equiring 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 distric t
court did not abuse its discretion by dismissing the complaint for insuffici ent 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)18 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 serv e the individual defendants were timely

. Nevertheless , regardless of whether t he individual defendants were properly served, the district court correctly concluded that the violations o f Title VII and the ADEA alleged in the complaint failed to state a cla im for relief against the m . 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). Li kewise, in Lissau v. Southern Food Services , Inc. , interpreting s imilar language in Title VII , we held that individuals are not subject to liability under that statute

. 159 F.3d 177, 18 0

- 8 1 (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 ca se 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 law suit

.

I V.
F or the reasons discussed, the judgment of the district court is
AFFIRMED
.