1996 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
 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.