Appeal from the Superior Court of the District of Columbia (CAB7236-08) (Hon. Cheryl M. Long, Trial Judge).
The opinion of the court was delivered by: Ferren, Senior Judge
Before FERREN, TERRY, and SCHWELB, Senior Judges.
Pro se plaintiff Randall Reade appeals the trial court's "Order Denying Plaintiff's Motion to Amend Complaint and for Summary Judgment, and Dismissing Complaint Sua Sponte." Fundamentally, the case concerns Reade's failure to file timely and legally sufficient proof of service of process pursuant to Super. Ct. Civ. R. 4 (l), (m). We agree with the trial court that Reade's Affidavit of Service by Process Server was legally defective because it failed to comply with the strictures of Super. Ct. Civ. R. 4 (l)(1). Thus, the trial court did not err in denying Reade a default upon his filing this affidavit. Given the special circumstances of this case, however, including Reade's status as a pro se plaintiff, we agree with Reade that the trial court abused its discretion by dismissing Reade's complaint (1) without apprising him of the reasons why the Affidavit of Service was defective; (2) without informing him how to cure the defect to avoid dismissal of his complaint; and (3) without taking into proper account the Superior Court Clerk's earlier grant of an extension of time to accomplish service of process ten days later than the trial court ordered dismissal. We therefore reverse the order of dismissal and remand the case for further proceedings.
On April 23, 2007, Reade filed a complaint in the Small Claims and Conciliation Branch of the Civil Division of the Superior Court to recover $4,955 allegedly owed by Justis Saradji, a former tenant. The case was dismissed without prejudice for improper service of process. Reade refiled, but the case was again dismissed without prejudice for failure to properly serve the defendant. Reade refiled a third time on October 10, 2008 in the Civil Division of the Superior Court, requesting $39,764 from Saradji to cover a loan, back rent, the cost of cleaning the apartment, and the cost of hiring a private investigator to locate and serve the defendant. Reade made numerous attempts to serve Saradji with a summons and the complaint, but he ultimately failed, allegedly because of Saradji's successful efforts to avoid service of process.
On December 10, 2008, allegedly as a result of Saradji's elusive behavior, Reade filed a motion for an extension of time to serve process, which the trial court granted the next day, December 11. The court noted that Super Ct. Civ. R. 4 (m) requires a plaintiff to file an affidavit establishing service of process within sixty days of filing the complaint, and that Reade had not filed a timely affidavit. The court observed, however, that although Rule 4 (m) required dismissal of the case for that reason, Super. Ct. Civ. R. 41 (b) authorizes the court to vacate such a dismissal "upon a showing of good cause why the case should not be dismissed." The court determined that under the circumstances Reade had shown good cause, and it reactivated the complaint giving him an additional sixty days, until February 9, 2009, within which to file a Rule 4 (l) affidavit or to file another motion seeking additional time.
On December 17, 2008 Reade filed a motion for special service of process by a United States Marshal, a deputy Marshal, or other specially appointed person pursuant to Super. Ct. Civ. R. 4 (c)(2). The trial court denied this request the next day, December 18, finding that Reade "has a good, current address" for Saradji and "can arrange for a process server to serve Defendant when he is leaving his home, walking down his front door step, or entering his car." The court warned Reade that if he needed additional time to serve Saradji, he should file a second motion for extension "no later than February 9, 2009."
Reade proffers in his brief that a private investigator he hired was finally able to serve Saradji on December 25, 2008 by leaving a copy of the summons and complaint with Bobbie Saradji, his stepmother, who lived with Saradji. He adds that the investigator made a recording of the conversation he had had with Ms. Saradji. On January 29, 2009, Reade filed an Affidavit of Service by Process Server in an effort to comply with Super. Ct. Civ. R. 4 (l). The affidavit indicated that "a copy of the Summons, Complaint and Initial Order [were left at Saradji's] place of abode or business at 42nd Avenue, Glenn Burnie, MD with Bobbie Saradji[,] a person of approximately _____ years of age who stated that he/she resides therein with the defendant." As the blank space indicates, the process server did not include Ms. Saradji's approximate age in the affidavit.
In the meantime, on December 31, 2008 the case had been transferred from Judge Beck to Judge Long to conduct a hearing Judge Beck had scheduled for March 6, 2009. Four days before the hearing, however, on March 2, the Clerk of the court, sua sponte, denied Reade a default against Saradji pursuant to Super. Ct. Civ. R. 55 (a),*fn1 because "[s]ervice does not clearly indicate that the person served on behalf of the defendant is authorized under [Super. Ct. Civ. R.] 4 (l) (1)." The Clerk's written notice gave Reade until April 6, 2009 to respond to the March 2 order, and warned him that "[f]ailure to respond by the date shown will result in dismissal." The following day, March 3, Reade filed a motion to amend his complaint to claim "further expenses." He also filed another motion asking for summary judgment, stating that Saradji had been "properly served with a Summons on December 25, 2008," and that he had "failed to file an Answer within the statutory 20 days" and thus had "forfeited this case."
The court held the hearing on March 6, 2009 but failed to acknowledge the Clerk's March 2 denial of default and extension of time to April 6 to cure defective service. Nor did the court advert to Reade's March 3 motion for summary judgment.*fn2 A review of the transcript of the March 6 hearing suggests that the court was unaware of the Clerk's order and Reade's motion. Instead, the court mentioned Judge Beck's December 18, 2008 order denying Reade's motion for special service of process, to which Reade responded that he "did file and serve [Saradji] at the end of December," and that his private investigator had "filed an affidavit of that, I think, [on] January 27th." Reade then expressed his belief that service was "complete." At this point, the court suggested that Reade file another "motion referring to [the] affidavit of service, whatever it was you filed, to prove that you served the person, and then the court will act on that and we'll proceed further." The court set a status hearing for May 1, 2009 for "ex parte proof of damages where you come in and give sworn statements about the exact amount of money you are owed."
On March 27, 2009, three weeks after the hearing, the trial court ruled on Reade's March 3 motions and issued the order now on appeal. In that order, the court denied Reade's motion to amend the complaint to claim "further expenses," indicating that such relief would be "entirely premature." The court then denied Reade's motion for summary judgment, construing it as a motion for entry of a default.
On its face, the Affidavit [of Service] is legally defective . . . because the person who executed the Affidavit . . . failed to specify the age of the person to whom he gave the Summons and Complaint at the defendant's residence . . . [and] failed also to explain other required information about the individual.
The court explained that, under Super. Ct. Civ. R. 4 (e)(2), when the process server leaves court papers with someone other than the defendant, that person must be "'of suitable age and discretion.'" The court added that the affidavit must provide "at least two specific kinds of descriptive information: the person's age and a description of the person's status that would imply a level of reliability in relaying court papers, such as 'spouse.'" Further, said the court, the March 3 motion was not a proper response to the Clerk's March 2 order because it did not explain why the Affidavit of Service was not defective or attempt to file an amended Affidavit. The court then dismissed the case sua sponte, noting that "if the Clerk of the court had noticed that no legally sufficient service had been completed ...