Laura M Wells et al v. American Polygraph Association et al

Filing 74

ORDER that Defendants' 28 Motion to Dismiss is DENIED AS PREMATURE. ORDERED that Plaintiffs' 29 Motion to Strike is DENIED AS MOOT; Plaintiffs' 56 Motion to Amend is DENIED AS PREMATURE; Defendants' 59 Motion to Stri ke is GRANTED; Defendants' 71 Motion to Strike is DENIED AS MOOT. IT IS FURTHER ORDERED that Plaintiffs shall properly serve the Defendants within 30 days of the date of this Order with the Summons and Amended Complaint and file proof of service. Signed by Judge G Murray Snow on 8/21/2013.(LFIG)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Laura M. Wells; Kelley L. Bradbury;
Morgan M. Block; Melanie Haswood;
Brian Gilmore; Bradley Ledford; Elie
Lahhoud; Timothy Roberts; Elizabeth
Trujillo; Devin Brennan; Dean Bausman;
William Reynolds; and Nancy Farran,

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No. CV-13-00607-PHX-GMS
ORDER

Plaintiffs,
v.
American Polygraph Association; Barry
Cushman; Charles Slupski; Pam Shaw;
George Baranowski; Robert Peters; Walt
Goodson; Jamie McCloughan; Raymond
Nelson; Mike Gougler; Vickie T. MurphyCarr; Chad Russell; Gordon L. Vaughan;
Donald Krapohl; Robbie S. Bennett;
Donnie Dutton; Lisa Jacocks; and Roy
Ortiz,
Defendants.

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Pending before the Court are several motions: Defendants’ Motion to Dismiss

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(Doc. 28), Plaintiffs’ Motion to Strike Defendants’ Motion to Dismiss (Doc. 29),

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Plaintiffs’ Motion to Amend (Doc. 56), Defendants’ Motion to Strike Service Executed

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(Doc. 59), and Defendants’ Motion to Strike Plaintiffs’ Response to Defendants’ Reply

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(Doc. 71). For the reasons discussed below, Defendants’ Motion to Dismiss is denied as

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moot, Plaintiffs’ Motion to Strike is denied as moot, Plaintiffs’ Motion to Amend is

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denied as premature, and Defendants’ Motion to Strike is granted.

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Defendants have moved to strike Plaintiffs’ Affidavit/Proof of Service filed on

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June 21, 2013. (Doc. 59.) Plaintiffs’ Proof of Service indicates that Plaintiffs served the

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summons on attorney Whitney M. Harvey, whom Defendants had not authorized to

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accept service on their behalf as of June 21, 2013. (See Doc. 55.) Service of a complaint

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on an attorney is ineffective unless the attorney has specific authority to accept service.

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Pochiro v. Prudential Ins. Co. of Am., 827 F.2d 1246, 1248–49 (9th Cir. 1987). Plaintiffs

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object that Harvey had submitted a notice of appearance as attorney of record for all

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Defendants on June 4, 2013. (See Doc. 43.) That appearance did not, however, contain

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any express grant of authority to accept service on behalf of Defendants. The attorney-

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client relationship by itself is insufficient to convey authority to accept service. Kruska v.

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Perverted Justice Found. Inc., No. CV-08-0054-PHX-SMM, 2009 WL 4041941 at *2 (D.

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Ariz. Nov. 16, 2009). Though implied authority to accept service of process is

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permissible in the Ninth Circuit, an agent’s authority to act cannot be established solely

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though the agent’s actions; rather, the authority must be established by an act of the

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principal. In re Focus Media Inc., 387 F.3d 1077, 1082, 1084 (9th Cir. 2004). Here, there

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is no evidence of any act by Defendants indicating that Harvey had authority to accept

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service of process. The fact that Harvey requested copies of notices and pleadings to be

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sent to her does not implicate Defendants, who have not by their actions or otherwise

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given Harvey permission to accept service on their behalf. Thus, Plaintiffs’ service of

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process by mailing the Complaint to Harvey was insufficient, and Defendants’ Motion to

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Strike is granted.

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Because Plaintiffs have not yet effectuated service on Defendants, their Motion to

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Amend is premature, as is Defendants’ Motion to Dismiss the as-yet unserved Complaint.

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Because the Motion to Dismiss is premature, Plaintiffs’ Motion to Strike the Motion to

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Dismiss and Defendants’ Motion to Strike Plaintiffs’ Response to their Reply are denied

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as moot.

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IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. 28)
is DENIED AS PREMATURE.

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IT IS FURTHER ORDERED that Plaintiffs’ Motion to Strike Defendants’
Motion to Dismiss (Doc. 29) is DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Amend (Doc. 56) is
DENIED AS PREMATURE.
IT IS FURTHER ORDERED that Defendants’ Motion to Strike Service
Executed (Doc. 59) is GRANTED.
IT IS FURTHER ORDERED that Defendants’ Motion to Strike Response (Doc.
71) is DENIED AS MOOT.

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IT IS FURTHER ORDERED that Plaintiffs shall properly serve the Defendants

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within 30 days of the date of this Order with the Summons and Amended Complaint1

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and file proof of service.

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Dated this 21st day of August, 2013.

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The Amended Complaint filed on May 1, 2013 (Doc. 24) is the “operative
complaint” in this matter.
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