Reality Technology, Inc. v. Countertrade Products, Inc. et al

Filing 59

ORDER DISMISSING DEFENDANT RODNEY ANDERSON. Defendant's Rodney Anderson's 48 Motion to Dismiss for Insufficient Service of Process are granted. Plaintiff's claims against defendant Rodney Anderson are dismissed without prejudice. By Judge Philip A. Brimmer on 6/8/11.(mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-01791-PAB-KLM
REALITY TECHNOLOGY, INC., a Colorado Corporation,
Plaintiff,
v.
COUNTERTRADE PRODUCTS, INC., a Colorado Corporation,
JOE CALABRIA , an individual,
JOE BOGLINO, an individual,
SHARON NORWELL, an individual, and
RODNEY ANDERSON, an individual,
Defendants.

ORDER DISMISSING DEFENDANT RODNEY ANDERSON

This matter is before the Court on defendant Rodney Anderson’s motion to
dismiss for insufficient service of process [Docket No. 48]. The motion is fully briefed
and ripe for disposition. Mr. Anderson moves for dismissal on the grounds that plaintiff
did not serve him until two months after the deadline set by Fed. R. Civ. P. 4(m). Rule
4(m) provides that:
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 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.
Fed. R. Civ. P. 4(m). “Good cause” can be shown by demonstrating a defendant
evaded service, see Hendry v. Schneider, 116 F.3d 446, 449 n.2 (10th Cir. 1997), or
some other “showing of good faith on the part of the party seeking the enlargement and

some reasonable basis for noncompliance within the time specified.” In re Kirkland, 86
F.3d 172, 175 (10th Cir. 1996). “The plaintiff who seeks to rely on the good cause
provision must show meticulous efforts to comply with the rule,” and the court is “not
compelled to accept a lesser ‘excusable neglect’ showing” to support a finding of good
cause. Id. at 175. “Thus, change of counsel, inadvertent oversight on the part of
counsel, or inadequate performance of a process server form insufficient excuses for
failure to effect service within the 120-day period.” Wischmeyer v. Wood, Civil Action
No. 07-cv-01863-LTB, 2008 WL 2324128 at *2 (D. Colo. June 2, 2008) (citing Cox v.
Sandia Corp., 941 F.2d 1124, 1125 (10th Cir. 1991)).
Plaintiff admits that the 120 day deadline for serving Mr. Anderson expired on
November 26, 2010, but that it did not serve Mr. Anderson until January 28, 2011.
Plaintiff states that it engaged the services of a Colorado legal support firm to locate
and serve Mr. Anderson, operating under the belief that he resided in Colorado.
Plaintiff worked with a Yasmeen Watson to locate Mr. Anderson. Ms. Watson was
unable to locate Mr. Anderson in the state of Colorado and advised plaintiff of this fact
in October 2010. Plaintiff’s attorneys performed a public records search on Mr.
Anderson, ultimately discovering that Mr. Anderson was listed as the primary contact for
CounterTrade Products, Inc.’s New Mexico office, located at 1630 Alameda Boulevard,
Albuquerque, New Mexico. Ms. Watson attempted service on Mr. Anderson in New
Mexico with the assistance of contacts in New Mexico, but these contacts failed to
serve Mr. Anderson and reported that he was “unavailable.” On November 22, 2010,
six days before the 120 day deadline, plaintiff contacted David Martin, a New Mexico-

2

based investigator, and engaged him to serve Mr. Anderson. See Docket No. 49-1 at
1-3 (affidavit of Jonathan P. Schultz). Before the expiration of the deadline, Mr. Martin
conducted records searches for Mr. Anderson, but did not find a Rodney Anderson who
used the 1630 Alameda Boulevard address or was employed by CounterTrade. Mr.
Martin ultimately served Mr. Anderson at the 1630 Alameda Boulevard address on
January 28, 2011. See Docket No. 49-1 at 5 (affidavit of David Martin).
Mr. Anderson states that he has worked at 1630 Alameda Boulevard in
Albuquerque for the past four years, that plaintiff’s employees knew he was located in
New Mexico, and that the contact page on CounterTrade’s website clearly lists him as
the primary contact for the company’s New Mexico office and states 1630 Alameda
Boulevard as the address of that office. Moreover, this page on CounterTrade’s
website is the first result when one enters Mr. Anderson’s name and the company’s
name into the Google search engine. Mr. Anderson also states that the only contact he
had with individuals attempting to serve him in this matter was two phone calls, the first
in the summer of 2010 from an individual who stated he would call back or stop by his
office, but never did, and the second from Mr. Davis shortly before Mr. Davis served Mr.
Anderson in January 2011. See Docket No. 52-1 (affidavit of Rodney Anderson).
Plaintiff argues that it was reasonably diligent in pursuing service upon Mr.
Anderson and that it would have “effected service within the 120-day period but for
faulty (if not deliberately false) advice given its New Mexico process server concerning
Mr. Anderson’s presence at the office at 1630 Alameda Ave., N.W., in Albuquerque.”
See Docket No. 49 at 5. Plaintiff also argues it could have served Mr. Anderson if

3

defense counsel had “responded truthfully” to direct questions from plaintiff’s counsel
about where Mr. Anderson was located. See id.
As for the first argument, plaintiff appears to refer to Mr. Martin’s affidavit, which
describes Mr. Martin’s efforts after November 26, 2010 to confirm that Mr. Anderson
was located at 1630 Alameda Boulevard and his conversation with an individual after
calling CounterTrade’s New Mexico phone number. Although Mr. Anderson disputes
several of the facts in Mr. Davis’ affidavit, they are ultimately immaterial. These efforts
were made after the 120 day deadline expired and do not show plaintiff’s meticulous
efforts to comply with the rule. See Wischmeyer, 2008 WL 2324128 (arguments
related to attempts after the 120 day deadline irrelevant to good cause showing). As for
the second justification, it is not clear that defense counsel was untruthful when he
stated that he did not represent Mr. Anderson, which he did not, and that he did not
know where Mr. Anderson resided. Morever, plaintiff presents no authority for the
proposition that defense counsel is obligated to investigate the location of an unserved
defendant whom he does not represent. Ultimately, plaintiff’s facts indicate that it
mistakenly believed that Mr. Anderson resided in Colorado – despite the CounterTrade
website and the availability of a simple Google search indicating otherwise – and that
once plaintiff realized Mr. Anderson was located in New Mexico, its original process
server was unable to serve him there for reasons unknown. Plaintiff then engaged a
second process server a week before the 120 day deadline, but the process server was
unable to confirm Mr. Anderson’s address before the deadline expired. These facts
demonstrate the inadequacy of plaintiff’s process servers, but they do not show Mr.
Anderson evaded process or that plaintiff undertook “meticulous efforts to comply with
4

the rule.” Therefore, the Court finds plaintiff has not demonstrated good cause for the
failure to timely serve Mr. Anderson. See Kirkland, 86 F.3d at 175.
Even though plaintiff has not shown “good cause” for its failure to serve Mr.
Anderson within the 120 day period, the Court must still consider whether to grant
plaintiff a permissible extension of time for service. See Espinoza v. United States, 52
F.3d 838, 841 (10th Cir. 1995). A permissive extension may be appropriate where the
statute of limitations would bar the refiled action or where other policy considerations
favor a permissive extension. See id. at 842. Plaintiff has not provided any reason why
a permissive extension would be appropriate in this case, see Docket No. 49 at 5-6,
and the Court finds none. Therefore, the Court declines to exercise its discretion to
grant plaintiff a permissive extension.
For the foregoing reasons, it is
ORDERED that Defendant’s Rodney Anderson’s Motion to Dismiss for
Insufficient Service of Process [Docket No. 48] is GRANTED. It is further
ORDERED that plaintiff’s claims against defendant Rodney Anderson are
DISMISSED without prejudice.

DATED June 8, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

5