King v. Earnhardt's Gilbert Dodge Incorporated

Filing 8

ORDER denying Plaintiff's 4 Motion for Leave to Alternative Service of Process without prejudice as premature. (See document for full details). Signed by Magistrate Judge Lawrence O Anderson on 2/5/14. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ted King,

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Plaintiff,
vs.

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Earnhardt’s Gilbert Dodge, Inc.,
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Defendant.
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No. CV-14-106-PHX-LOA
ORDER

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This action is before the Court on pro se Plaintiff’s Motion for Leave to Alternative
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Service of Process, requesting “[l]eave to serve process the most economical way, via USPS
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Registered [mail] - Certified to each of the three defendants named herein[.]”1 (Doc. 4)

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(bolding omitted) On February 3, 2014, the Court granted Plaintiff’s Application to Proceed
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in District Court Without Prepaying Fees or Costs, but, after screening the Complaint, as
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required by 28 U.S.C. § 1915(e), the Court ordered Plaintiff to file an Amended Complaint
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by February 21, 2014 due to a number of pleading deficiencies. (Doc. 6)
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I. Service of Process
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Before a federal or state court may exercise personal jurisdiction over a defendant,
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the procedural requirement of service of the summons and complaint must be satisfied. Omni
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Capital Int’l., Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987), superseded by statute on
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Inc.

Note: there is only one named defendant in this action, Earnhardt’s Gilbert Dodge,

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other grounds; S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007). Because service of

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process is the means by which a trial court obtains jurisdiction over a person or corporation,

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“[a] person [or corporation] is not bound by a judgment in a litigation to which he or [it] has

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not been made a party by service of process.” Mason v. Genisco Technology Corp., 960 F.2d

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849, 851 (9th Cir. 1992). Rule 4, Fed.R.Civ.P., governs the service of process in federal

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courts. “A federal court is without personal jurisdiction over a defendant unless the

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defendant has been served in accordance with Fed.R.Civ.P. 4.” Benny v. Pipes, 799 F.2d

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489, 492 (9th Cir. 1986).

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“[T]he purpose of the rules requiring service of process is to give a defendant ‘notice

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of the proceeding against him.’” Rebuild America, Inc. v. Golden Raven, Inc., 2008 WL

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4173637, at *3 (Az. Ct. App. Feb. 14, 2008) (citation omitted). “An elementary and

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fundamental requirement of due process in any proceeding which is to be accorded finality

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is notice reasonably calculated, under all the circumstances, to apprise interested parties of

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the pendency of the action and afford them an opportunity to present their objections.”

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Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314 (1950).

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Federal Rule of Civil Procedure 4(h) addresses service of process on a legal entity,

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such as a corporation, partnership, or limited liability company, within or outside a judicial

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district of the United States. It provides that, unless otherwise provided by federal law or a

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defendant’s waiver of service under Rule 4(d) has been filed, a legal entity may be served

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in any judicial district of the United States. Rule 4(h) provides, in relevant part, that process

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must be served:

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(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B) 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 or by
law to receive service of process and - if the agent is one authorized by statute and
the statute so requires - by also mailing a copy of each to the defendant . . . .

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Rule 4(h)(1)(A)-(B), Fed.R.Civ.P.
Federal Rule of Civil Procedure 4(e)(1), in turn, provides that “[u]nless federal law
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provides otherwise, an individual . . . may be served in a judicial district of the United States

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by: (1) following state law for serving a summons in an action brought in courts of general

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jurisdiction in the state where the district court is located or where service is made . . . .”

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Rule 4(e)(1), Fed.R.Civ.P.

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“Service by mail is an alternative form of service, available in lieu of personal

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service.” Postal Instant Press v. Corral Restaurants, Inc., 186 Ariz. 535, 537, 925 P.2d 260,

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262 (Ariz. 1996). “Personal service is usually preferred, as it insures that the named party

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receives actual and timely notice of the action.” Ritchie v. Salvatore Gatto Partners, 223

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Ariz. 304, 307, 222 P.3d 920, 923 (Az. Ct. App. 2010). “Under certain circumstances,

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however, alternative forms of service may be utilized.” Id. (citing Ariz. R. Civ. P. 4.1(m),

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(n); Barlage v. Valentine, 210 Ariz. 270, 277, 110 P.3d 371, 378 (Az. Ct. App. 2005) (listing

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examples of alternatives to personal service for purposes of conveying notice)). One such

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circumstance occurs when personal service on a defendant has become “impracticable.” See

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Rule 4.1(k), Ariz.R.Civ.P., formerly Rule 4.1(m). See BMO Harris Bank, N.A. v. D.R.C.

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Investments, L.L.C., 2013 WL 4804482, at *3-4 (D. Ariz. Sept. 9, 2013).

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II. Discussion

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It is premature to determine the manner in which Defendant Earnhardt’s Gilbert

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Dodge, Inc.2 should be served with process, especially considering Plaintiff is requesting

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service by mail, a less desirable alternative means, and there is no evidence that personal

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service on Defendant is impractical. Moreover, if Plaintiff’s Amended Complaint does not

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cure the original Complaint’s deficiencies and fails to allege a plausible claim, this action

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will be dismissed and any service issue would be moot. Lastly, assuming the initial pleading

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deficiencies are cured and this action is allowed to proceed and Defendant does not file a

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waiver service pursuant to Rule 4(d), Fed.R.Civ.P., the United States Marshal Service will

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initially attempt personal service on Defendant. While service by mail may certainly be more

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According to the Arizona Corporation Commission’s public website, Earnhardt’s
Gilbert Dodge, Inc. is an active and in-good-standing Arizona corporation with a duly
appointed Arizona statutory agent. See www.azcc.gov (last viewed on February 5, 2014)
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economical, it is not the service method of choice in the first instance and may not be valid

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service under the circumstances.

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Based on the foregoing,

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IT IS ORDERED that Plaintiff’s Motion for Leave to Alternative Service of Process,

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doc. 4, is DENIED without prejudice as premature.
DATED this 5th day of February, 2014.

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