IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RAYMOND MCKINNEY, )
Plaintiff, j
v. j Civil Action No. 04—826 GMS
MBNA AMERICA, INC., I
Defendant. j
ORDER
1. On July 6, 2004, Raymond McKinney ("McKim1ey") tiled a complaint against MBNA
America, Inc. ("MBNA"), alleging racial discrimination and retaliation on the part of
MBNA, pursuant to Title Vll ofthe Civil Rights Act of 1964 ("'I`itle VII"), 42 USC. §
2000e, erseq., Title I ofthe Civil Rights Act of 1991 , 42 U.S.C. § 198 1 (a), and the Delaware
Discrimination Act, Del. C. Ann. tit. 19 § 711. According to the court`s docket, no summons
was issued.
2. On October 2, 2004, Mcl
Thus, on November I6, 2004, McKinney served MBNA’s custodian of records with a form
of summons and copy ofthe complaint. The summons, while identifying the court and the
parties, was not signed or sealed by the Clerk ofthe Court and had no date. (D.I. 6, Ex. 5.)
3. On December 17, 2004, MBNA tiled a Motion to Dismiss the Complaint (DI. 5) for lack of
personal jurisdiction and for failure to effect timely service. MBNA asserts that personal
jurisdiction is lacking because McKinney failed to obtain a summons signed by the clerk of
the court and bearing the seal ofthe court and, therefore, failed to obtain valid process from
Case 1:04-cv-00826-Gl\/IS Document 15 Filed 09/22/2005 Page 2 of 3
the court. (D.l. 6, at 5.) The motion further asserts that McKinney failed to effect timely
service of process as required under Rule 4(in) of the Federal Rules of Civil Procedure,
because MBNA was not served with the complaint until November 16, 2004, 131 days after
it was tiled. (Id. at 3, 6.)
4. On January 21, 2005, McKinney tiled a Response in Opposition (D.I. 8) to MBNA’s motion,
as well as an Opening Brief (D.I. 9) in support ofhis opposition. McKinney argues that the
court should deny MBNA’s motion to dismiss because the relevant factors that the court
must consider in determining whether to grant him an extension of time for re—service weigh
in his favor. (D.1. 9, at 4.) McKinney, however, makes no arguments regarding MBNA’s
contention that the court lacks personal jurisdiction.
5. Federal Rule of Civil Procedure 4(a) sets for the procedure by which a court obtains personal
jurisdiction over a defendant, and provides, in pertinent part: "{tl he summons shall be signed
by the court, bear the seal of the court, identify the court an the parties, be directed to the
defendant, and state the name and address of the plaintiff s attorney .... " Fed. R. Civ. P.
4(a). Additionally, "the Commentaries to the Rule point out [that] the Rule is comprehensive
and ‘a mistake in its use can be fata1."’ Ayers v. Jacobs & Crimzpfar, P.A., 99 F.3d 565, 569
(3d Cir. 1996) (citing Fed. R. Civ. P. 4 28 U.S.C.A. Practice Commentary C4—l (1992 &
Supp. 1996)).
6. In Ayers v. Jacobs & Crumplrrr, P.A., 99 F.3d 565 (3d Cir. 1996), the Third Circuit addressed
whether a district court had personal jurisdiction over a defendant when the plaintiff failed
to obtain a signed and sealed summons, holding that "[al summons which is not signed and
sealed by the Clerk of Court does not confer personal jurisdiction over the defendant." 99
2
Case 1 :04-cv—00826-GIVIS Document 15 Filed 09/22/2005 Page 3 of 3
F.3d at 569. The court further held that "[u]pon proper motion, or if the defendant raises the
matter in the responsive pleading, such suit shouid be dismissed under [Federal Rule of Civil
Procedure] l2(b)(2)." {rz'. Lastly, the court held that under circumstances where the plaintiff
has failed to obtain a signed and sealed summons, “it becomes unnecessary for the district
courts to consider such questions as whether service was properly made, or whether an
extension to the 120-day service period should be granted under Rule 4(m)." Id.
5. In the present case, McKinney has presented no evidence demonstrating that he obtained a
summons signed and sealed by the clerk ofthe court when he tiled his complaint. As such,
the court does not have personal jurisdiction over MBNA and this action must be dismissed
under Federal Rule of Civil Procedure l2(b)(2).
Therefore, IT IS HEREBY ORDERED that:
1. MBNA’s Motion to Dismiss (D.I. 5) is GRANTED.
2. The plaintiffs claims against MBNA are dismissed without prejudice.
A Dated; September 9- Z , 2005
UNI S TES D TRI IUDG
F I L E D
SEP 2 2 2005
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