D, Warren Justice.
the court is a motion to dismiss by defendants Robert
Fernandez and Ryan Dashkewich.
Fernandez and Dashkewich move to dismiss for insufficiency of
service pursuant to Rule 12(b)(5), and Dashkewich also
contends that the complaint fails to state a claim as against
Michael Doyle's complaint alleges that Fernandez made an
improper left turn that resulted in damage to Doyle's
vehicle. The complaint is dated and was originally submitted
to the clerk's office on June 11, 2018. However, it was
accompanied by an application for leave to proceed in forma
pauperis, which was not resolved until payment of a partial
filing fee on July 23, 2018.
September 20, Doyle filed purported returns of service
showing (1) that documents sent to Fernandez by certified
mail, return receipt requested, had been refused and (2)
documents sent to Dashkewich by certified mail, return
receipt requested, had been signed for. Doyle also submitted
a certified receipt from Geico insurance and an email or
internet acknowledgment that State Farm had received
September 24, 2018 Fernandez and Dashkewich filed the motions
to dismiss that are now before the court.
of a summons and complaint on individual defendants must
generally be made in accordance with M.R.Civ.P. 4(d)(1). That
rule does not authorize service by certified mail. Under
M.R.Civ.P. 4(c)(1) a plaintiff may send complaints to a
defendant by first-class mail enclosing an acknowledgment of
service. A form acknowledgment of service is listed in the
Appendix to the Civil Rules and is available from the
Clerk's office or on the judicial branch
acknowledgment form is to be signed by the defendant and
states that the defendant has received the summons and
complaint and understands that if no answer is filed within
the applicable time limits, a default judgment may be
entered. A certified mail receipt is not an acknowledgment of
last sentence of Rule 4(c)(1) provides that if no
acknowledgment is received by the sender, service must be
made by a sheriff or other authorized process server or by
another method authorized by statute or rule. See Brown
v. Thaler, 2005 ME 75 ¶ 5, 880 A.2d 1113.
case Doyle attempted service by certified mail, but did not
obtain acknowledgments of service. Accordingly, service has
not been validly made under Rule 4(c)(1).
Fernandez and Dashkewich appear to be New York residents, but
Doyle's complaint does not fall within the special
categories of cases that would permit service by certified
mail under Rule 4(f)(1) and (2). Finally, if service by
certified mail were valid under New York law, it is possible
that service could be upheld under Rule 4(e). However, New
York does not authorize service by certified mail.
See NY CPLR § 308.
though it is evident that defendants now have notice of
Doyle's claim, proper service of the summons and
complaint is required, and Doyle's failure to properly
serve Fernandez and Dashkewich requires dismissal of the
complaint pursuant to M.R.Civ.P. 12(b)(5). Brown v.
Thaler,2005 ME 75 ¶¶ 8-13. A dismissal ...