Franco v. P/A Industries

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
CESAR FRANCO,
v. Civil No. 25-cv-00089-JL-TSM
P/A INDUSTRIES
REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION TO DISMISS
Self-represented Plaintiff Cesar Franco (“Franco”) brings this employment discrimination
suit (Doc. No. 1) against P/A Industries. Franco alleges that Defendant discriminated against him
on the basis of his race and national origin. Franco further alleges that Defendant retaliated against
him when it terminated his employment. Before the court for a Report and Recommendation is
Defendant’s Motion to Dismiss (Doc. No. 5), to which Franco did not object.1 For the reasons that
follow, the court recommends that the district judge grant Defendant’s Motion to Dismiss.
BACKGROUND
The relevant facts, viewed in the light most favorable to Franco, are drawn from Franco’s
sparse Complaint (Doc. No. 1) and the docket entries in this case.
1 LR 7.1(b) provides the deadline for filing objections and states, “[t]he court shall deem waived
any objection not filed in accordance with this rule.” Accordingly, Franco waived any objection
to Defendant’s motion to dismiss.
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Franco’s Employment with P/A Industries
Franco was employed by P/A Industries, which Defendant asserts is a Connecticut2
company without any ties to New Hampshire.3 Doc. No. 5 at ¶ 1. At some point during his
employment, Franco got injured at work. Doc. No. 1 at pg. 4. When he returned to work, he
“could not perform,” so Defendant terminated his employment. Id. Franco alleges that Defendant
discriminated against him on the basis of his race and national origin, although he does not specify
his race or his national origin in the Complaint. Id. Franco further alleges that his termination was
retaliatory. Id. Franco alleges that because of Defendant’s discrimination and retaliatory conduct,
he suffered financial loss and emotional harm. Id.
Procedural History
Franco filed his Complaint on March 4, 2025. Doc. No. 1. However, he did not complete
service within the ninety-day service period set by the Federal Rules of Civil Procedure. See Fed.
R. Civ. P. 4(m). Therefore, on June 6, 2025, the undersigned magistrate judge issued an endorsed
report and recommendation, which recommended that the district judge dismiss the Complaint for
failure to prosecute because Franco failed to complete and return summonses and appeared to have
abandoned the litigation. Endorsed R & R, June 6, 2025. On June 16, 2025, Franco submitted a
2 The court takes judicial notice of the Annual Report that Defendant filed on May 12, 2025, with
the Connecticut Secretary of State, which lists Defendant’s business and mailing address as 522
Cottage Grove Road, Bloomfield, CT, 06002. Business.CT.gov (last visited Feb. 3, 2026),
https://service.ct.gov/business/s/onlinebusinesssearch?businessNameEn=8%2BRAq%2F%2BzE
V6rPAbNc2knMKUnxCGXlKWFKS%2BwTgSThO4%3D. See Torrens v. Lockheed Martin
Servs. Grp., Inc., 396 F.3d 468, 473 (1st Cir. 2005) (taking “judicial notice of the existence of
government records.”).
3 Franco does not provide the dates that he worked for Defendant, nor does he state when he was
terminated from the company.
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Motion to Extend Time to File Proof of Service to Defendant (Doc. No. 2).4 The court granted his
motion and extended Franco’s deadline to file proof of service to July 20, 2025. Endorsed Order,
June 20, 2020. The court also vacated the June 6, 2025 endorsed report and recommendation.
On July 15, 2025, the court docketed Franco’s proof of service documents (“return of
service”). Doc. No. 3. In his return of service, Franco included a cover sheet and a copy of the
Complaint. Id. On the cover sheet, he stated: “The plaintiff certifies that a true copy [of the]
summons and the complaint were served on the defendant by priority mail on the following
defendant [defendant name and address].” Doc. No. 3 at pg. 1. A copy of the summons was not
included in the return of service documents that Franco submitted. See generally Doc. No. 3.
Defendant now moves to dismiss the Complaint (Doc. No. 5), to which Franco did not object.
DISCUSSION
Defendant argues that dismissal is appropriate for three reasons. First, Defendant argues
that Franco failed to effect proper service of process pursuant to Federal Rule of Civil Procedure
4. See Doc. No. 5 at ¶¶ 5-9. Second, Defendant contends that dismissal is proper pursuant to Rule
12(b)(6) because Franco does not allege a claim for which relief can be granted. Id. at ¶¶ 10-16.
Finally, Defendant argues that although Franco alleges discrimination, he does not allege that he
pursued and exhausted his administrative remedies. Therefore, Defendant contends that dismissal
is warranted because Plaintiff failed to exhaust his administrative remedies. Id. at ¶¶ 17-20.
Because the court agrees that dismissal is warranted because Franco did not properly serve
4 In his Motion to Extend, Franco argued that he sent the Complaint by mail to Defendant but
misplaced the summons because of a chronic medical condition, resulting in his inability to serve
Defendant with the document. Doc. No. 2 at pg. 1.
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Defendant and because the Complaint fails to state a claim, the court does not reach Defendant’s
third ground for dismissal.
I. Failure to Properly Serve
A. Legal Standard
“Motions to dismiss for insufficient service of process are governed by Federal Rule of
Civil Procedure 12(b)(5).” Villano v. Long Island Pipe Supply, Inc., No. 19-CV-808-LM, 2020
WL 1244929, at *2 (D.N.H. Mar. 16, 2020). When submitting a Rule 12(b)(5) objection, the
objecting party “must be specific and must identify with particularity the manner in which the
plaintiff has failed to satisfy the service requirements.” Id. “Once the objecting party has properly
challenged service of process, the burden shifts to the serving party to prove that service was
sufficient.” Id. Here, Defendant argues that Franco “has not served or submitted any summons,”
and that he failed to properly serve Defendant pursuant to Federal Rule of Civil Procedure 4(h).
Doc. No. 5 at ¶¶ 6-9.
B. Analysis
Rule 4 of the Federal Rules of Civil Procedure provides the proper procedures for
effectuating service of process. Specifically, Rule 4(h)(1) provides two ways in which a plaintiff
may serve process upon a corporation such as P/A Industries. “First, a plaintiff may serve a
corporation ‘by delivering a copy of the summons and of the complaint to an officer, a managing
or general agent, or any other agent authorized by appointment . . . to receive service of process.’”
Doyle v. YMCA of New Hampshire, 560 F.Supp. 3d 499, 503 (2021) (quoting Fed. R. Civ. P.
4(h)(1)(B)). Here, the return of service does not indicate that Franco served process on an officer,
a managing or general agent, or any other agent authorized to receive service for Defendant.
Instead, the record demonstrates that Franco sent a copy of only the complaint, by priority mail, to
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the general company address in Bloomfield, Connecticut.5 Doc. No. 3. Accordingly, there is no
basis to conclude that Franco delivered a copy of the summons and complaint to any of the
appropriate individuals. Therefore, Franco did not affect service of process in compliance with
Rule 4(h)(1)(B).
Alternatively, a plaintiff may serve a corporation “by following the law governing service
either of the state where the district court is located or the state where the defendant is located
when service is made.” Doyle, 560 F.Supp.3d at 503 (quotations omitted); see Fed. R. Civ. P.
4(h)(1)(A) and Fed. R. Civ. P. 4(e)(1). The record in the instant case indicates that Franco failed
to comply with both the law governing service of process in New Hampshire and the law governing
service of process in Connecticut, where P/A Industries was located when service was made.
Under New Hampshire law, “a foreign corporation may be served by registered or certified
mail, return receipt requested, addressed to the secretary of the foreign corporation at its principal
office shown in its application for a certificate of authority or in its most recent annual report . . .
.” RSA 293-A:15.10(b). Here, as previously noted, Franco sent Defendant a copy of the complaint
by priority mail addressed to the general company address. Doc. No. 3. at pg. 1. Thus, he not only
failed to comply with the statutory requirement to serve Defendant by certified or registered mail,
but he also failed to direct service to P/A Industries’ secretary. Id. Therefore, Franco’s effort to
effectuate service of process is insufficient under New Hampshire law.
5 Although Franco “certifies” that he sent “a true copy . . . [of the] summons and the complaint” to
Defendant, there is no summons included in the return of service documents that Plaintiff filed,
and Franco waived any explanation of the discrepancy by his failure to file an objection. See LR
7.1(b).
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Franco may also effectuate service of process “in the state where . . . service is made,”
which in this case, is Connecticut. Fed. R. Civ. P. 4(e)(1). Connecticut General Statute § 52-57(c)
provides in relevant part:
In actions against a private corporation, service of process shall be made either upon
the president, the vice president, an assistant vice president, the secretary, the
assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant
cashier, the teller or the assistant teller or its general or managing agent or manager
or upon any director resident in this state, or the person in charge of the business of
the corporation or upon any person who is at the time of service in charge of the
office of the corporation in the town in which its principal office or place of business
is located.
Conn. Gen. Stat. Ann. § 52-57(c) (West 2025). Here, Franco did not direct service to any of the
categories of individuals who are authorized to receive service of process under Connecticut law.6
Therefore, Franco did not properly serve Defendant under Connecticut law.
Because Franco failed to properly serve Defendant in this matter, the district judge should
grant Defendant’s motion and dismiss the case.7
II. Failure to State a Claim
Defendant argues that dismissal is also warranted because Franco’s sparse complaint fails
to state a claim for relief. Doc. No. 5 at ¶¶ 10-16. The court agrees and recommends that the
district court dismiss Franco’s complaint for this independent reason as well.
A. Legal Standard
“Under Rule 12(b)(6), the court must accept the factual allegations in the Complaint as
true, construe reasonable inferences in the plaintiff’s favor, and determine whether the factual
6 The court notes that Defendant’s May 12, 2025 Amended Annual Report identifies Edward R.
Morris as the company’s President. Supra note 2.
7 Defendant also argued that Plaintiff violated Rule 4 by failing to include a summons with the
materials he mailed to the company. See Doc. No. 5 at. ¶ 9. Because the court finds that service
of process was insufficient, it need not also address whether there were deficiencies in process.
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allegations in the complaint set forth a plausible claim upon which relief may be granted.” Barrows
v. State Employees’ Ass’n of New Hampshire, No.19-CV-1048-LM, 2020 WL 419597, at *1
(D.N.H. Jan. 27, 2020). To determine whether a claim is facially plausible, the complaint must
plead “factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[T]he plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully” Id. To determine whether the complaint crosses the threshold
from possible to plausible, “the reviewing court [must] draw on judicial experience and common
sense.” Garcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (quoting Iqbal, 556 U.S.
at 679).
Where, as here, Plaintiff proceeds pro se, the court must construe his allegations liberally.
Melendez v. Univ. of New Hampshire, No. 23-CV-00172-SM-TSM, 2024 WL 5408179, at *1
(D.N.H. Nov. 12, 2024), report and recommendation adopted, No. 23-CV-172-SM, 2025 WL
486819 (D.N.H. Feb. 10, 2025). The court’s liberal approach to the Complaint serves “to avoid
inappropriately stringent rules and unnecessary dismissals.” Johnson v. Rapid Sheet Metal, LLC,
560 F. Supp. 3d 623, 626 (D.N.H. 2020) (quoting Bourne. v. Arruda, Civ. No. 10-cv-393-LM, 2011
WL 2357504, at *3 (D.N.H. June 10, 2011)). However, the court will not accept “bald assertions,
unsupportable conclusions, periphrastic circumlocutions, and the like.” Melendez, 2024 WL
5408179, at *1 (quoting Redondo-Borges v. U.S. Dept. of Housing and Urban Development, 421
F. 3d 1, 5 (1st Cir. 2005)).
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B. Analysis
i. Discrimination Claims
Title VII makes it unlawful “to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race .
. . or national origin.” 42 U.S.C. § 2000e–2(a)(1). Franco alleges that Defendant discriminated
against him on the basis of his race and national origin.8 Where, as here, there is no direct evidence
of racial or national origin discrimination, Franco must first establish a prima facie case under the
McDonnel Douglas burden shifting paradigm. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
804-805 (1973). To establish a prima facie case of race or national origin discrimination under
that paradigm, Franco must allege that: “(1) [he] is a member of a protected class; (2) [his]
employer took an adverse employment action against him; (3) [he] was qualified for the
employment he held; and (4) [his] position remained open or was filled by a person whose
qualifications were similar to his.” Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 19
(1st Cir. 1999).
In the instant case, Franco’s complaint falls far short of alleging a prima facie case of race
and/or national origin discrimination. Although Franco makes a conclusory assertion that he was
discriminated against on the basis of his race and national origin, he does not specify his
membership in a protected class. Further, Franco does not identify any specific discriminatory
conduct or identify the person(s) who engaged in such conduct. Additionally, the complaint fails
to allege that Franco was qualified for the job, and there are no allegations about whether his
position was filled or remained open after his termination. Even read liberally and in the light
8 “‘National origin’ refers to the country where a person was born or the country from which his
or her ancestors came.” Abravanel v. Starwood Hotels & Resorts Wordwide, Inc., 94 F. Supp. 3d
134, 142 (D.P.R. 2015) (quoting Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973)).
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most favorable to Franco, the complaint does not “set forth minimal facts as to who did what to
whom, when, where, and why.” Calvi v. Knox Cnty., 470 F.3d 422, 430 (1st Cir. 2006) (quoting
Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 66 (1st Cir. 2004)).
Accordingly, the complaint fails to state a claim for race and/or national origin discrimination, and
dismissal is warranted.
ii. Retaliation Claim
Franco alleges that Defendant retaliated against him by terminating his employment. To
state a retaliation claim under Title VII, a plaintiff must plausibly allege that “(1) the plaintiff
engaged in protected conduct, (2) the employer took an adverse employment action, which was
(3) in response to the employee’s protected activity.” Kinzer v. Whole Foods Mkt., Inc., 99 F.4th
105, 115 (1st Cir. 2024).
Here too, Plaintiff’s complaint falls woefully short of asserting a viable claim. Besides
alleging that Defendant took an adverse employment action – terminating his employment –
Franco fails to assert any other facts to support a plausible claim of retaliation. Accordingly,
dismissal is appropriate under Rule 12(b)(6), and the district judge should grant Defendant’s
motion to dismiss.
CONCLUSION
For the foregoing reasons, the court recommends that the district judge grant Defendant’s
motion to dismiss. Any objections to this Report and Recommendation must be filed within
fourteen days of receipt of this notice. The objection period may be extended upon motion. Failure
to file any objection within the specified time waives the right to appeal the district court's
Order. See Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016). Only those issues raised
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in the written objections “‘are subject to review in the district court,’” and any issues “‘not
preserved by such objection are precluded on appeal.’” Id. (citations omitted).
______________________________
Talesha L. Saint-Marc
United States Magistrate Judge
February 19, 2026
cc: Cesar Franco, pro se
Counsel of Record
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