2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-12-2013

Alexander Maltezos v. Nikitas Giannakouros

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-2601

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Recommended Citation

"Alexander Maltezos v. Nikitas Giannakouros" (2013). 2013 Decisions. Paper 990.

http://digitalcommons.law.villanova.edu/thirdcircuit_2013/990
GLD-184 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2601

___________

ALEXANDER MALTEZOS,

 Appellant

v.

NIKITAS GIANNAKOUROS, also known as Nick;

MARIA DELORENZO; LEO SOKOLOSKI, 

Chief of the Police Bloomsburg Police Department

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 11-cv-02376)

District Judge: Honorable Yvette Kane

____________________________________

Submitted for Possible Summary Action Pursuant to 

Third Circuit LAR 27.4 and I.O.P. 10.6

April 4, 2013

Before: FUENTES, FISHER and GREENBERG, Circuit Judges

(Opinion filed: April 12, 2013)

_________

OPINION

_________

PER CURIAM

Pro se appellant, Alexander Maltezos, appeals from an order of the United States 

District Court for the Middle District of Pennsylvania, dismissing his pro se complaint 
2

without prejudice for failure to effect service pursuant to Federal Rule of Civil Procedure 

4(m). We will affirm.

Maltezos commenced the underlying action by submitting a complaint and an 

application for leave to proceed in forma pauperis (“ifp”) to the United States District 

Court for the Eastern District of Pennsylvania in July of 2011. Maltezos‟ complaint 

alleged diversity jurisdiction and named three defendants – Giannakouros, Delorenzo and 

Sokoloski. In an order entered on July 27, 2011, the District Court granted Maltezos‟ ifp

motion, filed his complaint, directed the Clerk to issue summonses, and instructed the 

U.S. Marshal‟s Service to serve the summonses and complaint upon the named 

defendants. Sokoloski was served in early October and, that same month, filed a motion 

pursuant to Fed. R. Civ. P. 12(b)(6) seeking to have the complaint dismissed for failure to 

state a claim and for improper venue. The District Court granted the motion to dismiss, 

struck the complaint as to Sokoloski, and transferred the case to the District Court for the 

Middle District of Pennsylvania.

The Marshal subsequently returned service unexecuted as to the other two 

defendants. The return of service forms (USM-285) indicate that the Marshal attempted 

to serve defendants Giannakouros and Delorenzo at the three addresses provided in the 

complaint, but found the addresses to be vacant properties. The District Court directed 

Maltezos to provide more specific information on these two defendants. Maltezos 

responded and provided four addresses – three of which were the same as those listed in 

the complaint (i.e., the apparently vacant properties), and one of which was a new address 
3

in Georgia. The Marshal was directed to serve defendants Delorenzo and Giannakouros 

at the addresses provided. The Marshal thereafter attempted service at the new address in 

Georgia. Once again, the Marshal returned the USM-285 forms unexecuted, noting that 

the Georgia address was for a closed restaurant and a closed empty building.

The Magistrate Judge to whom the complaint had been referred issued a Report 

and Recommendation (“R&R”) in April 2012, recommending, inter alia, that the 

complaint be dismissed without prejudice as a result of Maltezos‟ failure to serve 

defendants within 120 days of filing the complaint. The Magistrate Judge based that 

recommendation on the determination that Maltezos did not show good cause for failure 

to provide a proper address for service. The Magistrate Judge noted Maltezos‟ allegation 

that defendants Delorenzo and Giannakouros were criminals and that Giannakouros was 

in the country illegally, and commented that the Marshal had already spent considerable 

time and effort attempting service.

Maltezos objected to the R&R. However, instead of providing any additional 

information regarding a proper address for defendants Delorenzo and Giannakouros, he 

simply provided their phone numbers and the phone numbers for several other 

individuals. In an order entered on May 14, 2012, the District Court adopted the R&R 

and dismissed the case without prejudice pursuant to Fed. R. Civ. P. 4(m). Maltezos 

appealed, challenging the District Court‟s Rule 4(m) dismissal.

We have jurisdiction under 28 U.S.C. ' 1291. See Welch v. Folsom, 925 F.2d 

666, 668 (3d Cir. 1991) (order of dismissal is final and appealable under § 1291where
4

complaint filed by a plaintiff granted leave to proceed ifp is dismissed without prejudice 

for failure to effect service of process). Rule 4(m) provides that the District Court shall 

dismiss the complaint after notice to the plaintiff if service of the complaint is not made 

upon a defendant within 120 days after the filing. See Fed. R. Civ. P. 4(m). A District 

Court must extend the time for service, however, where a plaintiff demonstrates good 

cause for the failure to timely serve the defendant. See McCurdy v. Am. Bd. of Plastic 

Surgery, 157 F.3d 191, 196 (3d Cir. 1998). Even if a plaintiff fails to show good cause, 

the District Court must still consider whether any additional factors warrant a 

discretionary extension of time. See Petrucelli v. Bohringer & Ratzinger, GMHB, 46

F.3d 1298, 1305-06 (3d Cir. 1995). We review a dismissal pursuant to Rule 4(m) for an 

abuse of discretion. See Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 568 (3d Cir. 

1996).

While Fed. R. Civ. P. 4(c)(3) requires that the court effect service of the summons 

and complaint for a plaintiff who is proceeding ifp, the plaintiff must provide sufficient 

information for the court to do so. See Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 

1993) (it is the responsibility of a plaintiff proceeding pro se and ifp to provide proper 

addresses for service). Maltezos has not provided valid addresses for defendants 

Delorenzo and Giannakouros so that the U.S. Marshal could properly effect service. The 

Marshal‟s Service attempted to, but could not, locate defendants Delorenzo and 

Giannakouros at all four of the addresses provided by Maltezos. On the record presented 
5

and given the information provided by Maltezos, we cannot conclude that the District 

Court erred in determining that the Marshal‟s Service has fulfilled its duty.

Under these circumstances, Maltezos has not shown good cause for an extension 

of the Rule 4(m) period; the Marshal‟s Service is not required to attempt service into 

perpetuity at the same address. Moreover, at this stage, it is clear that Maltezos cannot 

provide the necessary information to effect service on defendants Delorenzo and 

Giannakouros. In his notice of appeal and then again in a post-judgment motion 

requesting an additional attempt at service, Maltezos simply insists that Giannakouros 

still lives at one of the addresses set forth in the complaint – an address that the Marshal‟s 

Service concluded was an apparently vacant building when it attempted personal service 

of the first set of summonses. As a discretionary extension of time is unlikely to yield 

any fruitful results, dismissal of the complaint without prejudice as to the remaining 
6

defendants for failure to timely effect service was appropriate.1 See Boley v. Kaymark, 

123 F.3d 756, 758 (3d Cir. 1997); Petrucelli, 46 F.3d at 1305-06.

For the foregoing reasons and because the appeal presents no substantial question,

we will summarily affirm the District Court‟s order of dismissal. See Third Circuit LAR 

27.4 and I.O.P. 10.6.

 

1

To the extent Maltezos also challenges the Order entered in the Eastern District 

with respect to the dismissal of defendant Sokoloski, he fares no better as we agree with 

the District Court‟s determination that Maltezos failed to state a claim against defendant 

Sokoloski. In exercising plenary review over this determination, see Fowler v. UPMC 

Shadyside, 578 F.3d 203, 206 (3d Cir. 2009), “we must „accept all factual allegations as 

true, construe the complaint in the light most favorable to the plaintiff, and determine 

whether, under any reasonable reading of the complaint, the plaintiff may be entitled to 

relief.‟” Id. at 210 (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 

2008)). To avoid dismissal, “a complaint must contain sufficient factual matter, accepted 

as true, to „state a claim to relief that is plausible on its face.‟” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). As noted by the District Court, Maltezos‟ complaint does not assert any 

cognizable legal theories against Sokoloski, nor does it state factual allegations sufficient 

to show that there is a plausible claim for relief against him. In fact, Maltezos does not 

mention Sokoloski in the complaint at all other than to identify him as a defendant. 

Moreover, we are satisfied that amendment to the complaint with respect to defendant 

Sokoloski would be futile, and therefore conclude that the District Court properly 

dismissed the complaint against Sokoloski without leave to amend. See Grayson v. 

Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (noting that a court should not 

dismiss a pro se complaint without granting leave to amend unless “amendment would be 

inequitable or futile”).