Swartz v. Sealed Power Corporation

BRIEF IN SUPPORT re MOTION to Dismiss Under Federal Rule of Civil Procedure 4

M.D. Pa.July 20, 2016

1 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA KEVIN EUGENE SWARTZ, Plaintiff, v. SEALED POWER CORPORATION. SPX CORPORATION. SPX, THERMAL PRODUCT SOLUTIONS, LUN ALSO KNOWN AS SPX, LUNAIRE LIMITED A UNIT OF SPX CORPORATION, Defendant. Case No.: 4:15-cv-393-MWB (KM) MEMORANDUM IN SUPPORT OF SPX CORPORATION’S MOTION TO DISMISS UNDER FEDERAL RULE OF CIVIL PROCEDURE 4(m) Because neither the First Amended Complaint filed in this action on February 12, 2016 (Doc. 27) nor any summons has ever been served on SPX Corporation (“SPX”), the 90-day period for service of both provided by Federal Rule of Civil Procedure 4(m) has long ago expired, SPX moves to dismiss the present action without prejudice. Case 4:15-cv-00393-MWB-KM Document 33 Filed 07/20/16 Page 1 of 6 2 I. PROCEDURAL HISTORY AND STATEMENT OF RELEVANT FACTS On February 2, 2016, the Court entered an Order (Doc. 26) granting in part and denying in part SPX’s motion to dismiss the original Complaint in this case under Federal Rules of Civil Procedure 8, 10, 11, 12 (Doc. 11). That Order adopted in full Magistrate Judge Mehalchick’s December 10, 2015, Report and Recommendations (Doc. 25). The December 10, 2015, Report and Recommendations - and thus this Court’s February 2nd Order - required that, “should the Plaintiff choose to file an amended complaint, he is instructed to serve the new summons and amended complaint together in accordance with Rule 4” (Doc. 25 at 8). To this date, however, there has been no service of any summons pursuant to Rule 4. On February 12, 2016, Plaintiff Kevin Eugene Swartz filed what was denominated as a First Amended Complaint For Patent Infringement (Doc. 27). That document’s caption lists as defendant “SEALED POWER CORPORATION. SPX CORPORATION. SPX, THERMAL PRODUCT SOLUTIONS, LUN ALSO KNOWN AS SPX, LUNAIRE LIMITED A UNIT OF SPX CORPORATION.” On February 15 and 17, 2017, an internal representative of SPX called Plaintiff to determine his intentions regarding this lawsuit. On both occasions, Plaintiff was not reached and messages were left providing both office and cell Case 4:15-cv-00393-MWB-KM Document 33 Filed 07/20/16 Page 2 of 6 3 phone numbers and asking that Plaintiff return those calls. No response to these calls has ever been received. On February 18, 2016, Kenneth Sheehan, one of SPX’s outside counsel and not an authorized agent of SPX, received by certified mail a copy of the First Amended Complaint. He did not receive any summons. Having received no response to the calls made by its internal representative, on March 4, 2016, outside counsel for SPX sent an email to Plaintiff’s last known email address inquiring what Plaintiff’s intentions were regarding the First Amended Complaint given that there had been no service of a summons (March 4, 2016, Email from Sheehan Swartz appended hereto as Exhibit 1). While no indication was received by SPX’s counsel that the email message was not delivered, no response to that email has ever been received. On June 30, 2016, this Court entered an Order (Doc. 31) requiring the “Defendant” (while listing in the Order’s caption “Sealed Power Corporation”) to file a response to Plaintiff’s First Amended Complaint by July 20, 2016.1 1 As mentioned above, the First Amended Complaint ambiguously lists “SEALED POWER CORPORATION. SPX CORPORATION. SPX, THERMAL PRODUCT SOLUTIONS, LUN ALSO KNOWN AS SPX, LUNAIRE LIMITED A UNIT OF SPX CORPORATION” as the defendant. The Court’s June 16th Order states only that the “Defendant” must file a response while listing in the caption “Sealed Power Corporation.” As it is possible that the plaintiff intended to sue SPX as at least one named defendant, and/or that the Court intended to refer to SPX, SPX continued on next page… Case 4:15-cv-00393-MWB-KM Document 33 Filed 07/20/16 Page 3 of 6 4 Last week, counsel for SPX sent plaintiff both an email and a letter by First Class Mail (July 15, 2016, Email and letter from Sheehan to Swartz appended hereto as Exhibits 2-3) discussing the present motion and the relief sought, and stating that SPX needed to file the motion by July 20th. Plaintiff has never responded to either the email or the letter. II. THE FIRST AMENDED COMPLAINT SHOULD BE DISMISSED FOR LACK OF SERVICE Federal Rule of Civil Procedure 4(m) provides in part that: “If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time” (emphasis added). Here, SPX - whether or not it is an intended defendant - has not been served with any papers whatsoever for over 150 days since the First Amended Complaint was filed on February 12th. Indeed, to SPX’s knowledge, no one has ever been served with any sort of summons.2 …continued from previous page files this motion to protect its rights. If SPX is not a party, SPX asks the Court and the plaintiff to so inform it. 2 Outside counsel for SPX was delivered a copy of the First Amended Complaint but not a summons. In any event, delivery to outside counsel does not constitute “service” since he is not an authorized agent. United States v. Ziegler Bolt & Parts Co., 111 F.3d 878, 881 (Fed. Cir. 1997) (citing cases and explaining that “the mere relationship between a defendant and his attorney does not, in itself, convey continued on next page… Case 4:15-cv-00393-MWB-KM Document 33 Filed 07/20/16 Page 4 of 6 5 Therefore, in accordance with the Federal Rule, this Court “must” take action. Given that: (a) SPX through both inside representatives and through outside counsel has repeatedly tried to contact plaintiff about the First Amended Complaint and about the lack of any proper service; and (b) the Court had previously specifically ordered the plaintiff to serve any amended complaint and any accompanying summons in accordance with Rule 4, plaintiff’s failure to serve justifies dismissing the First Amended Complaint. …continued from previous page authority to accept service,” and that “the record must show that the attorney exercised authority beyond the attorney-client relationship, including the power to accept service”)) with a copy of the First Amended Complaint Case 4:15-cv-00393-MWB-KM Document 33 Filed 07/20/16 Page 5 of 6 6 III. CONCLUSION The time limit for effecting services under Federal Rule of Civil Procedure 4(m) having expired and the plaintiff having repeatedly failed to follow this Court’s rules, procedures, and instructions, this action should be dismissed without prejudice. Dated: July 20, 2015 BAKER & HOSTETLER LLP By: /s/ John F. Murphy John F. Murphy (PA206307) 2929 Arch Street Cira Centre, 12th Floor Philadelphia, PA 19104-2891 Telephone: (215) 564.2898 Facsimile: (215) 568.3439 johnmurphy@bakerlaw.com Counsel for SPX Corporation Case 4:15-cv-00393-MWB-KM Document 33 Filed 07/20/16 Page 6 of 6 EXHIBIT 1 Case 4:15-cv-00393-MWB-KM Document 33-1 Filed 07/20/16 Page 1 of 2 1 From: Sheehan, Kenneth Sent: Friday, March 04, 2016 10:32 AM To: mkbswartz@windstream.net Subject: Swartz v Sealed Power Corporation Complaint Dear Mr. Swartz, I represent SPX Corporation as well as Thermal Product Solutions, an entity that is independent and unrelated to SPX Corporation, and am writing to you in connection with the complaint you filed in the United States District Court for the Middle District of Pennsylvania that has been assigned civil action number 4:15‐cv‐393 I have received two packets in the mail from you, the first of which is postmarked February 12, 2016 and contains a copy of a complaint and a set of exhibits. The second packet was postmarked February 22, 2016 and contains what appears to be a confirmation of service filed with the Court and an amended exhibit list. Neither packet contains a copy of a summons and neither of the companies I am representing are aware of any service of a summons and complaint or having been contacted by you regarding waiver of service. My client has tried to reach you recently by phone on two occasions to discuss your intentions regarding this complaint and has left messages on both occasions but has not received any response. As a result, it is unclear whether you have, or have attempted, to serve the complaint or are holding back on service without formally beginning any lawsuit with the intent of contacting my clients first to discuss resolution of this matter. If you believe that service has been effected, I would ask that you please forward me a copy of the summons and complaint as served. It is my understanding that you do not have counsel representing you in connection with the action you have filed but, if that is not correct, please let me know who is representing you so that I can contact them directly regarding the above. If you are represented by counsel, I am ethically bound to communicate with you through that counsel. Regards, Kenneth J. Sheehan Kenneth Sheehan | BakerHostetler Washington Square | 1050 Connecticut Avenue, N.W., Suite 1100 | Washington, D.C. 20036-5304 T 202.861.1682 | F 202.861.1783 ksheehan@bakerlaw.com Case 4:15-cv-00393-MWB-KM Document 33-1 Filed 07/20/16 Page 2 of 2 EXHIBIT 2 Case 4:15-cv-00393-MWB-KM Document 33-2 Filed 07/20/16 Page 1 of 3 1 From: Sheehan, Kenneth Sent: Friday, July 15, 2016 4:03 PM To: mkbswartz@windstream.net Subject: RE: Swartz v Sealed Power Corporation Complaint Dear Mr. Swartz, This email follows up on my email below and the calls to you by Mr. Hermes Soyez of SPX Corporation on February 15 and 17, to which we have received no response. As you may be aware, the Court in the above‐mentioned matter has Ordered the defendants to file a response to the Complaint by next Wednesday. As noted in my earlier email, my clients had not received service of the Summons and Complaint by March 4, 2016, and have not received service of the Summons and Complaint since that time. Because of this, my clients intend to file a motion to dismiss the action next Wednesday, July 20, 2016, based upon your failure to comply with Rule 4 of the Federal Rules of Civil Procedure. If you believe that we are mistaken and you have served the Summons and Complaint, please provide me with the particulars of the service, e.g., at what location service was effected, on whom the papers were served, etc. If you are represented by counsel at this time, please provide me with the contact information for your counsel or ask them to contact me at the number indicated below. Alternatively, if you are not represented by counsel, please contact me to discuss the motion to dismiss. Regards. Kenneth J. Sheehan Kenneth Sheehan Partner Washington Square 1050 Connecticut Ave, N.W. | Suite 1100 Washington, DC 20036-5304 T 202.861.1682 ksheehan@bakerlaw.com bakerlaw.com From: Sheehan, Kenneth Sent: Friday, March 04, 2016 10:32 AM To: mkbswartz@windstream.net Subject: Swartz v Sealed Power Corporation Complaint Case 4:15-cv-00393-MWB-KM Document 33-2 Filed 07/20/16 Page 2 of 3 2 Dear Mr. Swartz, I represent SPX Corporation as well as Thermal Product Solutions, an entity that is independent and unrelated to SPX Corporation, and am writing to you in connection with the complaint you filed in the United States District Court for the Middle District of Pennsylvania that has been assigned civil action number 4:15‐cv‐393 I have received two packets in the mail from you, the first of which is postmarked February 12, 2016 and contains a copy of a complaint and a set of exhibits. The second packet was postmarked February 22, 2016 and contains what appears to be a confirmation of service filed with the Court and an amended exhibit list. Neither packet contains a copy of a summons and neither of the companies I am representing are aware of any service of a summons and complaint or having been contacted by you regarding waiver of service. My client has tried to reach you recently by phone on two occasions to discuss your intentions regarding this complaint and has left messages on both occasions but has not received any response. As a result, it is unclear whether you have, or have attempted, to serve the complaint or are holding back on service without formally beginning any lawsuit with the intent of contacting my clients first to discuss resolution of this matter. If you believe that service has been effected, I would ask that you please forward me a copy of the summons and complaint as served. It is my understanding that you do not have counsel representing you in connection with the action you have filed but, if that is not correct, please let me know who is representing you so that I can contact them directly regarding the above. If you are represented by counsel, I am ethically bound to communicate with you through that counsel. Regards, Kenneth J. Sheehan Kenneth Sheehan | BakerHostetler Washington Square | 1050 Connecticut Avenue, N.W., Suite 1100 | Washington, D.C. 20036-5304 T 202.861.1682 | F 202.861.1783 ksheehan@bakerlaw.com Case 4:15-cv-00393-MWB-KM Document 33-2 Filed 07/20/16 Page 3 of 3 EXHIBIT 3 Case 4:15-cv-00393-MWB-KM Document 33-3 Filed 07/20/16 Page 1 of 2 Kenneth J. Sheehan direct dial: 202.861.1682 e-mail: ksheehan@bakerlaw.com July 15, 2016 VIA FIRST CLASS MAIL Mr. Kevin Eugene Swartz 105 Bold Orchard Road Milton, PA 17847 Re: Swartz v. Sealed Power Corporation Case No: 4:15-cv-00393-MWB-KM Dear Mr. Swartz: As noted in my email sent today, I am following up on my email of March 4, 2016 and the calls to you by Mr. Hermes Soyez of SPX Corporation on February 15 and 17, to which we have received no response. As you may be aware, the Court in the above-mentioned matter has Ordered the defendants to file a response to the Complaint by next Wednesday. As noted in my earlier email, my clients had not received service of the Summons and Complaint by March 4, 2016, and have not received service of the Summons and Complaint since that time. Because of this, my clients intend to file a motion to dismiss the action next Wednesday, July 20, 2016, based upon your failure to comply with Rule 4 of the Federal Rules of Civil Procedure. If you believe that we are mistaken and you have served the Summons and Complaint, please provide me with the particulars of the service, e.g., at what location service was effected, on whom the papers were served, etc. If you are represented by counsel at this time, please provide me with the contact information for your counsel or ask them to contact me at the number indicated above. Alternatively, if you are not represented by counsel, please contact me to discuss the motion to dismiss. Best regards, BAKER & HOSTETLER LLP Kenneth J. Sheehan Case 4:15-cv-00393-MWB-KM Document 33-3 Filed 07/20/16 Page 2 of 2