Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Doyle v. Fernandez

Superior Court of Maine, Cumberland

November 6, 2018

MICHAEL DOYLE, Plaintiff
v.
ROBERT FERNANDEZ, et al., Defendants

          ORDER

          Thomas D, Warren Justice.

         Before the court is a motion to dismiss by defendants Robert Fernandez and Ryan Dashkewich.

         Both 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 him.

         Procedural History

         Plaintiff 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.

         On 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 Doyle's claim.

         On September 24, 2018 Fernandez and Dashkewich filed the motions to dismiss that are now before the court.

         Service

         Service 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 website.[1]

         The 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 service.

         The 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.

         In this 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).[2]

         Both 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.[3]

         Even 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 ΒΆΒΆ 8-13. A dismissal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.