United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE .
the court is defendant Dr. Edward Blanchette's motion to
dismiss (Doc. No. 91) plaintiff Kormahyah Karmue's second
amended complaint (Doc. No. 70) (“SAC”), to the
extent the SAC asserts claims against Dr. Blanchette, on the
basis that the court lacks personal jurisdiction over Dr.
Blanchette. Plaintiff objects. See Doc. No. 93.
Blanchette's motion is filed under Rule 12(b)(2) of the
Federal Rules of Civil Procedure, which provides for
dismissal of an action against a defendant for “lack of
personal jurisdiction.” Fed.R.Civ.P. 12(b)(2). When a
defendant contests personal jurisdiction under Rule 12(b)(2),
the plaintiff bears the burden of persuading the court that
jurisdiction exists. Daynard v. Ness, Motley, Loadholt,
Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir.
as here, the court considers a Rule 12(b)(2) motion without
holding an evidentiary hearing, the court applies the
“prima facie” standard. See United States v.
Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001).
Under that standard, the plaintiff is required to
“proffer evidence which, taken at face value, suffices
to show all facts essential to personal jurisdiction.”
Baskin-Robbins Franch'g LLC v. Alpenrose Dairy,
Inc., 825 F.3d 28, 34 (1st Cir. 2016). The court takes
the plaintiff's “properly documented evidentiary
proffers as true and construe[s] them in the light most
favorable to [plaintiff's] jurisdictional claim.”
A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58
(1st Cir. 2016). A plaintiff may not “‘rely on
unsupported allegations in [its] pleadings.' Rather, [the
plaintiff] must put forward ‘evidence of specific
facts' to demonstrate that jurisdiction exists.”
Id. (citations omitted). Facts offered by the
defendant “‘become part of the mix only to the
extent that they are uncontradicted.'”
Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d
1, 8 (1st Cir. 2009) (citation omitted).
18, 2018, this court issued an Order (Doc. No. 68)
(“May 18 Order”) directing that the SAC be served
on certain individuals, including Dr. Blanchette. In the May
18 Order, the court specifically instructed the clerk's
office “to prepare and issue” a summons form for
Dr. Blanchette using the WDC address, and then to forward the
summons, along with a copy of, inter alia, the SAC to the
United States Marshals Service (“USMS”) to effect
service on Dr. Blanchette pursuant to Federal Rule of Civil
Procedure 4(e). May 18 Order, at 4-5. Because the plaintiff
is proceeding in forma pauperis in this matter, the court
directed service pursuant to 28 U.S.C. § 1915(d) and
Fed.R.Civ.P. 4(c)(3). See May 18 Order, at 4-5.
clerk's office issued the summons for Dr. Blanchette, as
directed, on May 23, 2018. See Doc. No. 71-2. On
August 2, 2018, the return of service (Doc. No. 85) was filed
in this court, indicating that the summons and documents the
clerk's office issued for service on Dr. Blanchette were
served upon David Tomasso, a WDC employee, at the WDC on July
13, 2018. The return indicates that Tomasso “is
designated by law to accept service of process on behalf
of” the WDC, but the return does not indicate that he
is designated to accept service on behalf of Dr. Blanchette.
Doc. No. 85, 2. The documents were placed in Dr.
Blanchette's mailbox at the WDC, as Dr. Blanchette was on
vacation on July 13, 2018. Dr. Blanchette received the
documents when he returned from vacation.
motion to dismiss, Dr. Blanchette states that Tomasso was not
authorized to accept service on Dr. Blanchette's behalf.
To the extent Tomasso may have authority to accept service on
behalf of the WDC or its employees, Dr. Blanchette asserts
that such authority did not extend to Dr. Blanchette, as he
is not a WDC employee. Karmue has not countered those factual
assertions or provided any evidence that Dr. Blanchette has
been properly served with a summons in this case.
the court cannot exercise personal jurisdiction over a
defendant who is not properly served, see United Elec.,
Radio & Machine Workers of Am. v. 163 Pleasant St.
Corp., 960 F.2d 1080, 1085 (1st Cir. 1992), the failure
to effect proper service on Dr. Blanchette is not
attributable to Karmue, and that provides grounds for denying
the motion to dismiss here. Karmue is incarcerated, and he is
proceeding in this action in forma pauperis pursuant to 28
U.S.C. § 1915. “A plaintiff proceeding in forma
pauperis is entitled to rely upon service by the [USMS] and
should not be penalized for failure of the [USMS] to properly
effect service of process, where such failure is through no
fault of the litigant.” Rochon v. Dawson, 82
F.2d 1107, 1110 (5th Cir. 1987); see also Robinson v.
Clipse, 602 F.3d 605, 608 (4th Cir. 2010) (declining to
penalize in forma pauperis plaintiff for USMS's delay in
effecting service of process).
pursuant to § 1915(d) and Rule 4(c)(3), the court
directed the USMS to effect service on Dr. Blanchette,
utilizing the WDC address, but proper service was not
effected. The court has no reason to believe that Karmue, who
is incarcerated in another state, would have had the ability
to obtain any additional information, such as the hours and
dates when Dr. Blanchette might be available to receive
personal service at the WDC, to enable the USMS to correct
the defect in service. For these reasons, the court declines
to penalize Karmue for the failure to effect proper service,
as “the failure is not attributable to the plaintiff
himself.” Rochon, 82 F.2d at 1110.
Accordingly, the district judge should deny Dr.
Blanchette's motion to dismiss (Doc. No. 91), without
prejudice to his ability to file a new motion to dismiss if
service upon him is not properly effected within sixty days
of the date of this R&R, pursuant to the Order that the
court is issuing on this date.
foregoing reasons, the district judge should deny defendant
Dr. Edward Blanchette's motion to dismiss (Doc. No. 91)
without prejudice. Any objections to this Report and
Recommendation must be filed within fourteen days of receipt
of this notice. See Fed.R.Civ.P. 72(b)(2). The
fourteen-day period may be extended upon motion. Failure to
file specific written objections to the Report and
Recommendation within the specified time waives ...