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. e du/thir dc ir c uit_1996/21UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 95-7676

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CAROLINE P. AYRES, Plaintiff-Appe llant,

v.

JACOBS & CRUMPLAR, P.A.; ROBERT JACOBS, individual ly and as an agent/senior partner; THOMAS C. CRUMPLAR, individua lly and as an agent/senior partner; DOUGLAS B. CANFIELD, individu ally and as an agent/senior partner, Defendants-Appe llees.

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

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

Before: Nygaard, Roth, and Rosenn, Circuit Judges

Filed November 1, 1996

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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

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OPINION OF THE COURT

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Rosenn, Circuit Judge.

This appeal presents basic but seriou s questions pertaining to essential procedures to obtain person al jurisdiction over defendants in a civil action file d in a federaldistrict court. The issues raised not only pertain to the

sufficiency of the process to obtain personal juris diction but also to the effective service of process. The Unit ed States
District Court for the District of Delaware dismiss ed the complaint and directed the Clerk to enter judgment for the defendants. The plaintiff timely appealed. We aff irm.

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 a ssociate from December 1988 until August 1993 when they terminate d her. On December 7, 1994, the plaintiff filed a complaint p ro se, challenging the termination of her employment by th e defendants, Jacobs & Crumplar, and its individual partners. Sh e did not request the Clerk of the Court to issue a signed su mmons with a seal of the court affixed thereto, but she obtained copies of summonses, filled in the name and address of defend ants, 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 l eaving the documents with the office manager, Donna Dobbs, of Jacobs & Crumplar. The plaintiff duly filed proofs of servi ce. On January 18, 1995, the defendants filed their answer
and moved to dismiss under Federal Rules of Civil P rocedure (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 p roceeded 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 ti me filing a supporting brief as required by the Local Rules. T he court stayed discovery and granted the defendants' motion to dismiss. In their motion, the defendants move to di smiss on two separate and distinct grounds. First, they claim a deficiency in process due to the plaintiff's failure to obtain th e Clerk's signature on the summonses and to have the seal of the court affixed. Second, they maintain that the office man ager at Jacobs & Crumplar had no authority to accept service on be half of a professional association or the individuals and the service, therefore, was defective. The district court concl uded that the plaintiff had provided no excuse for her failure to comply with the Rule relating to service "other than the fact t hat she simply did not think the `technical niceties' of service o f process important." The court found that "such disregard f or the Rules is inexcusable. Under the circumstances, the court can find no justification for permitting an amendment to the su mmons or for extending the deadline for service." The court fur ther found
that the defendants had not waived their service an d process defenses and dismissed the action. The plaintiff t imely appealed.

II. On appeal, the plaintiff reiterates the ar guments shesubmitted 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 go od faith
effort to serve the defendants. She asserts that s he had
effectuated valid service on the individual defenda nts by serving them "at their usual place of abode, their law firm ," and that the court erred in not finding that service upon th e professional association was perfected by serving its office man ager. She
further contends that the district court erred in n ot granting leave for reservice upon the defendants and in not following the general rule that Fed. R. Civ. P. (4)(m) requires d ismissal only where there is a complete lack of service on the de fendant. Fed. R. Civ. P. 4(h)(1) requires that serv ice on a corporation be to "an officer, a managing or genera l agent, or to any other agent authorized by appointment or by law to receive service of process . . .." In this case, the docum ents were delivered to the firm's office manager; the plainti ff does not dispute that the office manager does not, in actual ity, fall into any of these categories. Plaintiff, rather, relies on two arguments : That the office manager had apparent authority to accept pro cess, and that, in any event, the purpose of the service rule (i.e., to ensure notice) had been fulfilled. The district co urt properly disposes of the first argument by noting that as pl aintiff had been employed at the firm and knew or should have k nown that the office manager lacked actual authority, she was not in a position to rely on apparent authority. In regard to the se cond point, we note that although it is true that one of the purpo ses of the rules regarding service of process is to provide no tice, 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 se rvice." Id.at 492. The district court also rejected plaintiff 's contention that the defendants waived their service and proces s defenses by not presenting them sufficiently clearly and in a t imely manner (thereby "sandbagging plaintiff" by proceeding with discovery). The district court properly found plaintiff's posit ion to be contrary to the Federal Rules of Civil Procedure an d unsupported by precedent. The defendants included in their January 1 8, 1995 answer a motion to dismiss based in part on Rule 12 (b)(4) and (5). Although the motion was rejected because of t he defendants' failure to append a brief (as required by local cou rt rules), the motion was re-submitted within the requisite period set by the court, supported by brief, and served to put the pl aintiff 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 e ngaging in discovery and attending scheduling conferences. As the defendants point out, when confronted with an 18-co unt complaint seeking $28 million in relief, it is prudent to pro ceed with one's case while awaiting determination of motions to dismiss.We, furthermore, see no merit in the plain tiff's

contention that the district court erred in refusin g 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 cou rt . . . 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 ti me 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 c ause) 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 misplace d reliance does not constitute good cause).

III. We turn now to the sufficiency of the proc ess. We believe that a careful analysis of the law pertaini ng to the
issuance and function of the summons would have sav ed 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 def endant is required to appear and attend, are essential elemen ts of the court's personal jurisdiction over the defendant. "A summons is process because its service subjects the person ser ved to the court's jurisdiction, which is necessary to validat e a judgment that the court might render against the person." F ed. R. Civ. P. 4 28 U.S.C.A. Practice Commentary C4-4 (1992 & Supp . 1996). In the instant case, the plaintiff never r equested the
Clerk to issue a summons nor did he. The Clerk nei ther signed it nor affixed the seal of the Court as required by Ru le 4. The plaintiff avers in her affidavit that she prepared the summons in this action and took "a copy of the summons supplie d 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 wi thout 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 co urt must not only have subject matter jurisdiction over the liti gation beforeit, but also personal jurisdiction over the defenda nts. A court

may not go through the sterile exercise of acting i n a vacuum to adjudicate a legal dispute. It must have parties a s well as an actual controversy. In order to impose personal li ability upon a defendant or obligate him or her in favor of a plai ntiff, a court must be vested with jurisdiction over the parties a s 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 liabili ty 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 defend ant. 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. C iv. P. 4 28 U.S.C.A. Practice Commentary C4-1 (1992 & Supp. 199 6). The process is a two-step procedure: first, a complain t must be
filed with the Clerk of the Court where the Clerk i ssues a summons to the plaintiff or the plaintiff's attorne y who shall be responsible for service and, second, the summons an d a copy of the complaint must be effectively and timely served upon the defendant. Requiring the Clerk to sign and issue t he 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 b y the Clerk of the Court does not confer personal jurisdiction over the defendant. 2 James W. Moore, Moore's Federal Pract ice ¶ 4.05 (2d ed. 1996) ("Under Rule 4(b) only the clerk may issu e the summons . . . [A] summons issued by the plaintiff's attorne y is a nullity."); see also 4a Charles Alan Wright & Arthu r R. Miller, Federal Practice and Procedure § 1084 (2d ed. 1987) . Upon proper motion, or if the defendant raises the matter in th e responsive pleading, such suit should be dismissed under Fed. R. Civ. P. 12(b)(2). Thus, under such circumstances, it becom es 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 su ch improper issuance as showing a flagrant disregard for the ru les. That sort of analysis is useful in determining under Rul e 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 theret o fails toconfer personal jurisdiction over a defendant even if properly

served. We further hold that a summons when proper ly issued is not effective in conferring personal jurisdiction u pon a partnership or individual if it is not served in ac cordance with
Rule 4 of the Fed. R. Civ. P. unless service has be en 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.