NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-3764

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DAVID E. GABROS, M.D.,

 Appellant

v.

*SHORE MEDICAL CENTER; LINWOOD CARE CENTER; 

SCOTT STRENGER, M.D.; JEANNE ROWE, M.D.; PETER JUNGBLUT, M.D.

*(Amended pursuant to Clerk’s Order dated 10/19/2016)

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On Appeal from the United States District Court 

for the District of New Jersey

(D.C. No. 1-14-cv-01864)

District Judge: Honorable Noel L. Hillman

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Submitted Under Third Circuit L.A.R. 34.1(a)

January 22, 2018

Before: HARDIMAN, VANASKIE, and SHWARTZ, Circuit Judges.

(Filed: February 9, 2018)

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OPINION*

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 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
2

HARDIMAN, Circuit Judge.

David Gabros, M.D. appeals an order of the District Court dismissing his 

complaint against Shore Medical Center without prejudice. We will affirm.

I

Gabros sued Shore (and others not relevant to this appeal) in March of 2014, 

asserting a congeries of federal and state claims. After the District Court threatened to 

dismiss his case for lack of prosecution, Gabros first attempted to serve process on Shore 

six months after he filed suit. After another eleven months—during which Shore moved 

to dismiss for insufficient process and insufficient service of process under Rules 

12(b)(4) and (5) of the Federal Rules of Civil Procedure—Gabros tried a second time.

Four months later, after concluding that neither attempt to serve Shore was adequate, the 

District Court gave Gabros “one final opportunity to right the ship” within thirty days. 

App. 39–40. When Gabros failed to comply with that order, the Court granted Shore’s 

motion and dismissed Gabros’s suit without prejudice.

II1

Rule 4 of the Federal Rules of Civil Procedure, which governs service of process,

requires plaintiffs to serve a summons and a copy of the complaint on each defendant. 

 1 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have 

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over whether proper 

service was actually made. McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 194 (3d 

Cir. 1998). The choice of remedy for improper service is committed to the sound 

discretion of the District Court. Umbenhauer v. Woog, 969 F.2d 25, 38 (3d Cir. 1992).
3

FED. R. CIV. P. 4(c)(1). The summons has to satisfy the requirements of Rule 4(a)(1) and 

corporate defendants must be served consistent with Rule 4(h).

Here, the District Court held that Gabros failed to effectuate service on Shore 

because the summons was inadequate. We disagree. At least as to Gabros’s second and 

third tries, the record includes a summons that facially satisfies Rule 4(a)(1). It names the 

court and the parties, is directed to Shore as the defendant, states the name and address of 

Gabros’s counsel, provides the time for Shore to appear and notifies it of the 

consequences of failing to do so, is signed by the Clerk of the District Court, and bears 

the District Court’s seal. See FED. R. CIV. P. 4(a)(1)(A)–(G).Yet the Clerk initially left 

blank the fields for the defendant and plaintiff’s counsel, which caused the District Court 

to fault Gabros for “reus[ing] the lone blank summons issued by the Clerk” when he 

served each defendant. App. 11–12.

Contrary to the District Court’s holding, nothing in Rule 4 requires a summons to 

be signed and sealed by the Clerk only after it is otherwise completed. Rule 4(b) (which 

served as the basis for the District Court’s conclusion) provides merely that the plaintiff 

“may present a[n] [otherwise completed] summons to the clerk for signature and seal.”

The Federal Rules of Civil Procedure regulate the final form of a summons, not the 

methods by which clerks of court issue them. Indeed, the process followed here, in which 

“the clerk . . . deliver[ed] a blank summons, signed and sealed, [for the] plaintiff’s 

attorney to fill in,” is “common practice[] in many districts.” 1 NICHOLS CYCLOPEDIA OF 

FEDERAL PROCEDURE FORMS § 22.04 (Feb. 2017 Update).
4

Despite our disagreement with the District Court’s reasoning, we will affirm 

because we may do so “for any reason supported by the record.” Brightwell v. Lehman,

637 F.3d 187, 191 (3d Cir. 2011). “[T]he party asserting the validity of service bears the 

burden of proof on that issue,” Grand Entm’t Grp., Ltd. v. Star Media Sales, Inc., 988 

F.2d 476, 488 (3d Cir. 1993), and Gabros has consistently failed to establish that he 

served Shore by a method permitted by Rule 4(h).

Gabros submitted three proofs of service. And each one, read generously, indicates 

that a process server went to Shore’s place of business and left a copy of the summons 

and complaint with a particular person. The documents were first left with “Barbara 

Defenbeck, Administrative Assistant,” App. 106, and twice later with “Georgette Fox, 

Risk [Manager],” App. 44, 29. The record is bereft, however, of any evidence that either 

Defenbeck or Fox was “an officer, a managing or general agent, or an[] . . . agent 

authorized . . . to receive service of process.” FED. R. CIV. P. 4(h)(1)(B). Nor is there any 

basis to conclude that either one was “in charge” of Shore’s place of business and 

therefore a proper target of process under New Jersey Court Rule 4:4-4(a)(6), which the 

Federal Rules incorporate as a permissible method of service. See FED. R. CIV. P.
5

(h)(1)(A), 4(e)(1). Accordingly, the District Court did not abuse its discretion when it 

dismissed Gabros’s claims without prejudice. 2

 2 Gabros’s suggestion that Shore waived its challenges to service by answering 

and participating in some discovery is without merit. Shore preserved those defenses by 

including them in its answer, as the Federal Rules of Civil Procedure expressly allow. 

FED. R. CIV. P. 12(b) (“No defense or objection is waived by joining it with one or more 

other defenses or objections in a responsive pleading.”).

In addition, Gabros requests an evidentiary hearing concerning service of process 

on each defendant. Such a hearing is unnecessary because he has failed to show that there 

are any disputed facts that would require an evidentiary hearing. The record discloses the 

identities and/or jobs of the individuals who received the summons, and there is nothing 

before us to create a genuine dispute that those individuals are not officers, managing or 

general agents, or agents authorized to receive service of process as required under Rule 

4(h)(1)(B) of the Federal Rules of Civil Procedure.