United States District Court, District of Columbia
N. MCFADDEN, U.S.D.J.
Jewell seeks to sue DC2NY Incorporated for alleged violations
of state and federal labor laws, civil rights laws, breach of
contract, and negligence. DC2NY has moved to quash service
and dismiss the Plaintiff's complaint under Fed.R.Civ.P.
12(b)(4) and 12(b)(5). I find that Mr. Jewell failed to serve
DC2NY in violation of Fed.R.Civ.P. 4 (“Rule 4”),
and that he failed to use the Defendant's correct legal
name in the complaint caption as required by Fed.R.Civ.P.
10(a) (“Rule 10”). However, he has shown good
cause for the insufficient service of process, and the
allegations in Mr. Jewell's complaint make clear that
DC2NY Incorporated is the intended defendant. I therefore
grant the Defendant's Motion to Quash Service but deny
its Motion to Dismiss. Mr. Jewell will have 30 days from the
date of this Order to amend the complaint caption and
effectuate proper service of process. See Fed. R.
Civ. P. 4(m); 15(a)(2).
seeks dismissal of the case for insufficient service of
process. See Fed. R. Civ. P. 12(b)(5). It is true
that Mr. Jewell's attempted service was not proper under
federal or District of Columbia law. Rule 4 allows Mr. Jewell
to deliver the summons and a copy of the complaint to the
Defendant's authorized agent, or by following D.C. law
for serving a summons. Fed.R.Civ.P. 4(e). Under the
District's laws, “if an entity's registered
agent in the District cannot with reasonable diligence be
found” the Mayor, through the Superintendent of
Corporations, “shall be an agent of the entity upon
whom any process against the entity may be served.”
D.C. Code 29-104.12(d).
Rule 4(m), Mr. Jewell had to serve process on DC2NY and file
proof of this service with the Court by May 16, 2018. Minute
Order of April 16, 2018. On May 15, Mr. Jewell filed a
process server's affidavit stating that “BestBus
Company” had been served through delivery of the
summons and complaint to the District's Superintendent of
Corporations. Aff. Of Summons and Compl. Executed, ECF No. 5.
This attempted service did not satisfy local law
requirements, however, as the summons and complaint both
incorrectly identified the Defendant as “BestBus
Company.” See Summons, ECF No. 3 and Corrected
Complaint, ECF No. 2. No legal entity named “BestBus
Company” is registered in the District of Columbia.
See Business Filings Search, D.C. Dep't of
Consumer Affairs (“Corporations Database”)
visited August 2, 2018). The case docket features no other
proof of service, and so Mr. Jewell failed to timely serve
process on the Defendant.
Jewell has shown good cause for this failure. Good cause
arises when “a plaintiff has acted diligently in trying
to effect service or there are understandable mitigating
circumstances.” Raynor v. District of
Columbia, 296 F.Supp.3d 66, 72 (D.D.C. 2017). And where
plaintiff shows such good cause, “the court
must extend the time for service for an appropriate
period.” Fed.R.Civ.P. 4(m) (emphasis added).
April 11 and April 25, 2018, Mr. Jewell's process server
made five unsuccessful attempts to serve the Defendant. Aff.
Of Process Server, ECF No. 9-2. As DC2NY correctly notes, on
each occasion, the process server tried to serve
“Ferras Ghannam, ” an unknown individual.
Def.'s Mem. in Opp. To Proposed Mot. for Order to Amend
Compl. (“Def.'s Consolidated Mem.”) 2, ECF
so, Mr. Jewell's process server notes that after
“careful inquiry and diligent attempts, I was unable to
serve BestBus Company.” Each of these attempts was made
at ¶ 2NY's registered business address in the
District: 1401 Church St., NW, Suite 516, Washington, DC
2005. See Aff. Of Process Server; Corporations
Database, File No. 280482. And, as DC2NY concedes, it does
business as “Bestbus.” Def.'s Mot. to Quash
1, ECF No. 6. The use of “BestBus Company” rather
than the Defendant's registered tradename of
“Bestbus” was an understandable error.
listed business address also appears to be the home of the
Defendant's registered agent and CEO, Richard B. Green.
See Aff. Of Process Server (“[The front desk
receptionist] stated that Richard Green and another person
resides [sic] in that unit”); DC2NY Bus Company, Better
Business Bureau, available at
(listing Richard B. Green as company CEO); Corporations
Database (listing Green as the registered agent).
process server's fifth unsuccessful attempt, the
building's receptionist was able to reach Mr. Green, who
“stated not [sic] to be home at the time . . . and that
the company BestBus Company is not known at the
address.” Aff. of Process Server. DC2NY does not
contest the accuracy of the process server's affidavit.
See, e.g., Def.'s Consolidated Mem. 2 (using the
process server's statements to allege insufficient
service of process). That Mr. Green, Bestbus's CEO and
registered agent, suggested that “BestBus Company is
not known at the address” is at least an understandable
mitigating circumstance, if not a deliberate effort at,
preventing effectuation of service. Even though service was
thus improper, Mr. Jewell has shown good cause for his
failure and, under Rule 4(m), will be granted 30 days to
correctly serve DC2NY.
also seeks dismissal of the case for insufficient process
under Federal Rule of Civil Procedure 12(b)(4), arguing that
the summons and complaint do not properly identify DC2NY
Incorporated as the Defendant. Def.'s Mot. to Quash 1.
Rule 10 requires that “the title of the complaint must
name all the parties.” Fed.R.Civ.P. 10. But Mr.
Jewell's mistake in using “BestBus Company”
rather than the Defendant's trade name
“Bestbus” does not merit dismissal of the case.
because the error is harmless and the complaint makes it
clear that DC2NY Incorporated is the intended defendant, Mr.
Jewell will be granted leave to amend his complaint under
Fed.R.Civ.P. 15(a)(2) (requiring the court to “freely
give leave” to amend a complaint “when justice so
requires.” See Canuto v. Mattis, 273 F.Supp.3d
127, 133 (D.D.C. 2017) (concluding that when a plaintiff
“brought suit against a suable California corporation-
Woodman-Sylvan Properties, Inc.-but . . . mistakenly named
that corporation . . . in her complaint” the Court had
a “duty” to grant leave to amend the complaint
sua sponte under Fed.R.Civ.P. 15(a)(2)). See
also Barsten v. Department of Interior, 896 F.2d 422,
423 (9th Cir. 1990) (“[E]ven if an improper defendant
is indicated in the caption, we may consider a complaint to
have named the proper defendant if the allegations made in
the body of the complaint make it plain that the party is
intended as a defendant.”); Battle v.
Anderson, 993 F.2d 1551 (Table) at *2 (10th Cir. 1993)
(“[D]effective caption is merely formal error and
should never be viewed as fatal defect.”).
these reasons, it is hereby ORDERED that the
Defendant's Motion to Quash Service of Process is GRANTED
and the Defendant's Motion to Dismiss is DENIED. The
Plaintiff shall have 30 days from the date of this ...