Warcola v. Halikowski et al

Filing 15

ORDER that Defendants' 9 Motion to Dismiss is granted without prejudice to Plaintiff's right to re-file and appropriately serve the Complaint. The Clerk of Court is directed to terminate this action and enter judgment accordingly. Signed by Judge G Murray Snow on 6/24/2013.(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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No. CV-12-8201-PCT-GMS

Doris Ann Warcola,
Plaintiff,

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v.

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ORDER

John Halikowski, Director, Arizona
Department of Transportation; Jennifer
Dorsey, Assistant Attorney General,

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Defendants.

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Pending before the Court is Defendants’ Motion to Dismiss. (Doc. 9.) For the
reasons discussed below, the Court grants the Motion.

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The Defendants moves to dismiss Plaintiff Doris Warcola’s Complaint for failure

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to serve process pursuant to Fed. R. Civ. P. 12(b)(5). “A federal court does not have

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jurisdiction over a defendant unless the defendant has been served properly[.]” Direct

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Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir.

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1988) (citing Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982)).

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When service of process is challenged, a plaintiff bears the burden of showing that the

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court's personal jurisdiction is properly exercised. Hirsh v. Blue Cross, Blue Shield, 800

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F.2d 1474, 1477 (9th Cir. 1986). Pursuant to Fed. R. Civ. P. 4(m), service of process

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must be made within 120 days after the complaint is filed unless the court otherwise

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directs:

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If a defendant is not served within 120 days after the complaint is filed, the
court--on motion or on its own after notice to the plaintiff--must dismiss the

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action without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.

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Service upon a government entity like the Arizona Department of Transportation

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(“ADOT”) must be made by: (1) delivering a copy of the summons and of the complaint

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to its chief executive officer; or (2) serving a copy of each in the manner prescribed by

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that state's law for serving a summons or like process on such a defendant. Fed. R. Civ. P.

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4(j)(2). Rule 4(d) authorizes a plaintiff to request waiver of service, however, a defendant

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is not required to respond to the request. If a defendant fails to respond without good

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cause, a court must require the defendant to pay the expenses later incurred in making

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service. Fed. R. Civ. P. 4(d)(2). However, the plaintiff must still effect service of process

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on that defendant in a timely manner under Rule 4(m). See Troxell v. Fedders of North

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America, Inc., 160 F.3d 381, 383 (7th Cir. 1998); Cambridge Holdings Group, Inc. v.

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Federal Ins. Co., 489 F.3d 1356, 1362 (D.C. Cir. 2007)).

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Warcola has not complied with the Rule 4 requirements and has failed to serve

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process on ADOT. On October 10, 2012, Warcola mailed copies of the Summons and

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Complaint to ADOT Director John Halikowski. She included in that mail a “Waiver of

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the Service of Summons.” (Doc. 9-1 at 2.) However, it appears that Warcola signed and

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dated her name in the space designated for the “Printed name of party waiving service of

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summons.” (Id.) ADOT contends that it did not and was not required to waive service.

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On November 29, 2012, ADOT’s counsel notified Warcola that it had yet to be served

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with process and requested to speak with her to discuss the matter. (Id. at 5.) The Parties

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conferred on December 13, 2012 at which time ADOT’s counsel discussed service

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options with Warcola. (Id.) She agreed to effect proper service on ADOT. (Id.) On

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February 5, 2013, the Court issued an Order stating that a review of the file showed that

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the Complaint had not been properly served on ADOT within the time required by Rule

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4(m). (Doc. 8.) The Court required Warcola to show good cause within fourteen days for

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failure to serve. (Id.) Warcola did not reply to that Order. ADOT submits the affidavit of
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Mary Currie, who is authorized to accept service of process for ADOT, stating that as of

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February 13, 2013, ADOT had not been served with the Complaint. (Doc. 9-1 at 7.) A

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review of the file shows that as of the date of this Order, Warcola has not filed a notice of

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service of process.

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The rules governing service of process are strict, and Warcola’s failure to comply
cannot be excused after repeated requests to do so.

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IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. 9) is

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granted without prejudice to Plaintiff’s right to re-file and appropriately serve the

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Complaint. The Clerk of Court is directed to terminate this action and enter judgment

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accordingly.
Dated this 24th day of June, 2013.

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