OPINION AND ORDER (DOCS. 7, 8)
WILLIAM K. SESSION, III, District Judge.
Plaintiff Solomon Upshaw, proceeding pro se , and Plaintiff U Transport Corp bring this action against Defendants Morgan James and Joan Richards, also both appearing pro se . Defendants move to dismiss for insufficient service of process, among other arguments, and move for costs, sanctions, and punitive penalties against plaintiffs (Doc. 7). For the reasons set forth below, Defendants' motion to dismiss is GRANTED, and Defendants' motion for costs, sanctions, and punitive penalties is DENIED.
Plaintiff Upshaw and Defendants James and Richards are neighbors in Mattapan, Massachusetts. Upshaw purports to be president of co-plaintiff U Transport Corp. Litigation between Upshaw and James dates back to 2000, related to a dispute over parking in the right-of-way in front of their adjoining properties. Since then, numerous actions have been filed in state and Federal Courts in Massachusetts.
Here, Plaintiffs allege: 1) execution of a small claims judgment issued by the Boston Municipal Court Department of the Commonwealth of Massachusetts Trial Court, Docket No. 2010 S.C. 003068, deprived Plaintiffs of property "without a judicial trial and due process of law"; and 2) Defendants used a "false document" regarding an "unregistered truck" in order "to obtain an easement" in a Commonwealth of Massachusetts Appeals Court decision, Docket No. 04-p-751 (Doc. 1).
I. Defendants' Motion to Dismiss
At the outset, Defendants claim Plaintiffs did not serve them with a copy of the complaint filed in this matter, but instead served other documents that "do not incorporate Morgan James and Joan Richards as defendants within the caption heading of Case No. 2:12-cv-00265-WKS before this Court." (Doc. 8-1 at 1). This issue arises under Federal Rule of Civil Procedure 12(b)(5), providing for dismissal for insufficient service of process, and Federal Rule of Civil Procedure 4 (m).
Pursuant to Federal Rule of Civil Procedure 4, "[t]he plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies the person who makes service." Fed.R.Civ.P. 4(c). Rule 4(m) provides, "[i]f a defendant is not served within 120 days after the complaint is filed, the court... must dismiss the action without prejudice against the defendant or order that service be made within a specified time." Fed.R.Civ.P. 4(m).
Plaintiffs filed the complaint in this matter on November 26, 2012 (Doc. 1). On July 15, 2013, after more than 120 passed and plaintiffs had yet to file proof of service, this Court ordered Plaintiffs to provide the Court with proof of service on or before July 31, 2013 and warned, "[f]ailure to do so will result in the dismissal of this case." (Doc. 5).
Defendants allege, and the Court hereby finds, that Plaintiffs neither effected service of the complaint filed in this case (Docket No. 2:12-cv-00265-wks), nor did they effect service of a summons, as required by Rule 4. Instead, on July 23, 2013, a constable served both Defendants with a package of documents that did not include true and accurate copies of the complaint filed on November 26, 2012 (Docs. 7-1, 7-2).
The documents subsequently filed by Plaintiffs on July 29, 2013, purporting to provide proof of service, corroborate Defendants' allegations that they were not properly served. The returns of service filed with the Court (both dated July 23, 2013 and executed by "Joseph Figler, Constable and Disinterested Person")(Doc. 6 at 2) attach pages of the same document (Doc. 6 at 3) Defendants filed in support of their Motion. Additionally, the Court's records show Defendants never received a summons, which in-and-of-itself may constitute a fatal procedural defect. See Barron v. Miami Executive Towers Assocs. Ltd. P'Ship , 142 F.R.D. 394, 397 (S.D.N.Y.1992) ("actual receipt of both the summons and the complaint is a base requirement" of Rule 4).
Dismissal pursuant to Rule 12(b)(5) especially is warranted where, as here, Plaintiffs were fully on notice of the service requirement and nonetheless failed to observe it. See, e.g., Cioce v. County of Westchester , 128 F.App'x. 181, 183 (2d Cir. 2005). After more than 120 days passed from the date of filing the complaint, this Court ordered Plaintiffs to effect service and warned that failure to do so would result in dismissal of the case (Doc. 5). Plaintiffs clearly had notice of this Order, because they then served it on Defendants along with the "complaint" document (Docs. 7-1 at 3 and 7-2 at 2). Plaintiffs cannot maintain an action if Defendants do ...