Dittimus v. Bond, et al

Filing 50

ORDER granting 27 Motion to Quash Service. Service on Defendant LaLonde is hereby QUASHED. No later than 8/30/2013, Defendants counsel shall file, underrestriction level 1, the last known address for Defendant LaLonde. Plaintiff shall have 47 days from the date Defendant's counsel files Defendant LaLonde's address to perfect service of process, through the United States Marshals Service, on Defendant LaLonde pursuant to Fed. R. Civ. P. 4. By Magistrate Judge Kathleen M. Tafoya on 8/22/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12–cv–03010–MSK–KMT

CORRI DITTIMUS a-k-a DERRICK ANDERSON,
Plaintiff,
v.
MS. BOND, Program Director, Individual and Official Capacities, and
MR. LA LONDE, Case Management Supervisor, Individual and Official Capacities,
Defendants.

ORDER

This matter is before the court on Defendant LaLonde’s1 “Motion to Quash Service.”
(Doc. No. 27, filed Feb. 28, 2013.) For the following reasons, the Motion to Quash is
GRANTED.
RELEVANT PROCEDURAL HISTORY
Plaintiff’s Amended Prisoner Complaint (Doc. No. 9), filed December 17, 2012, asserts
two claims for relief against Defendant LaLonde. Plaintiff is proceeding in forma pauperis in
this case, pursuant to 28 U.S.C. § 1915. (Doc. No. 7.) Pursuant to 28 U.S.C. § 1915(d), “[t]he

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Although named as “Mr. La Londe” in Plaintiff’s Amended Prisoner Complaint,
Defendant LaLonde’s name is correctly spelled “LaLonde.” (Mot. Quash at 1.)

officers of the court shall issue and serve all process . . . in such cases.” Accordingly, Plaintiff is
entitled to have the United States Marshals Service effect service on his behalf.
On February 13, 2013, the United States Marshals Service filed a return of service
indicating that Defendant LaLonde had been served with process. (Doc. No. 24.) More
specifically, the return of service indicates that Defendant LaLonde was served with the
Summons and Amended Complaint through Charity Dorsch, the Litigation Coordinator at
Cheyenne Mountain Re-Entry Center (“CMRC”). (Id; see also Mot. ¶ 4.)
In his Motion to Quash, which was filed by way of a special appearance by and through
his counsel, Defendant LaLonde argues that leaving the Summons and Amended Complaint with
CMRC litigation coordinator was not adequate service under Federal Rule of Civil Procedure 4.
More specifically, Defendant LaLonde argues that because he has not been employed with
CMRC’s parent company, Community Education Centers (“CEC”) since October 2012,
CMRC’s litigation coordinator was not permitted to accept service on his behalf.
Plaintiff filed a Response to Defendant LaLonde’s Motion to Quash on March 20, 2013.
(Doc. No. 31.) On July 18, 2013, the court entered a minute order noting that the Motion to
Quash failed to include any evidence that Defendant LaLonde had not been employed by CEC
since October 2012. (Doc. No. 45.) The court nevertheless permitted Defendant LaLonde to file
a Supplement to his Motion to Quash no later than July 29, 2013 and allowed Plaintiff to respond
to the Supplement no later than August 8, 2013. (Id.) Defendant LaLonde’s Supplement was
timely filed on July 26, 2013. (Doc. No. 46.) Plaintiff did not respond to Defendant LaLonde’s
Supplement on or before August 8, 2013. Accordingly, this matter is ripe for the court’s review.
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ANALYSIS
Service of process in a federal action is governed generally by Federal Rule of Civil
Procedure 4. Rule 4(e) covers service upon individuals located within a judicial district. An
individual may be served in any judicial district in the United States by:
(1)

(2)

following state law for serving a summons in an action brought in courts
of general jurisdiction in the state where the district court is located or
where service is made; or
doing any of the following:
(A)
delivering a copy of the summons and of the complaint to the
individual personally;
(B)
leaving a copy of each at the individual’s dwelling or usual
place of abode with someone of suitable age and discretion
who resides there; or
(C)
delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e). Colorado state law provides that personal service may be accomplished by,
inter alia, leaving a copy of the summons and complaint “at the person’s usual workplace, with
the person’s supervisor, secretary, administrative assistant, bookkeeper, human resources
representative or managing agent.” Colo. R. Civ. P. 4(e)(1).
As the party challenging the service of process, Defendant LaLonde has the burden to
prove that service upon him was inadequate. Costin Engineering Consultants, Inc. v. Latham,
164 F.R.D. 521, 523 (D. Colo. 1996). “Objections to the sufficiency of process ‘must be specific
and must point out in what manner the plaintiff has failed to satisfy the service provision
utilized.’” O’Brien v. R.J. O’Brien & Assocs., 998 F.2d 1394, 1400 (7th Cir. 1993) (quoting
Photolab Corp. v. Simplex Specialty Co., 806 F.2d 807, 810 (8th Cir. 1986)). “A signed return
of service constitutes prima facie evidence of valid service ‘which can be overcome only by
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strong and convincing evidence.’” Id. at 1398 (quoting Hicklin v. Edwards, 226 F.2d 410, 414
(8th Cir. 1955)). Any affidavits submitted are to be construed, and any doubts are to be
resolved, in the light most favorable to the plaintiff. Fed. Deposit Ins. Corp. v. Oaklawn
Apartments, 959 F.2d 170, 174 (10th Cir. 1992).
Although the return of service filed by the United States Marshals Service constitutes
prima facie evidence of valid service, the court finds that Defendant LaLonde has submitted
strong and convincing evidence that demonstrates that service was not properly effectuated.
More specifically, Defendant LaLonde has submitted an uncontested Affidavit of Rebecca
Stafford, a Human Resource Representative from CMRC, stating that a review of Defendant
LaLonde’s employment records demonstrates that Defendant LaLonde left his employment with
CMRC on October 10, 2012, and was not employed with CMRC on February 7, 2013. (Suppl.,
Ex. A-1, Aff. of Rebecca Stafford, ¶¶ 1-3.) Because Defendant LaLonde was not employed by
CMRC on February 7, 2013, CMRC’s litigation coordinator did not have authority under
Colorado Rule of Civil Procedure 4(e)(1) to accept service of process on behalf of Defendant
LaLonde. In addition, there is no indication that Defendant LaLonde has otherwise been served
in accordance with Federal Rule of Civil Procedure 4(e). Therefore, the court finds that
Plaintif’s attempted service on Defendant LaLonde was defective and should be quashed.
However, Defendant’s counsel will be ordered to provide the last known address for Defendant
LaLonde.
As a final matter, Fed. R. Civ. P. 4(m) requires service to be accomplished within 120
days after filing of the complaint. It has been well over 120 days since Plaintiff’s Amended
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Complaint was filed. Nevertheless, at least one decision from this District has held that the filing
of a motion to quash service of process tolls this 120-day period. See Bruley v. Lincoln Property
Co., N.C., Inc., 140 F.R.D. 452, 455 (D. Colo. 1991). As Plaintiff’s Amended Complaint was
filed on December 17, 2012, Plaintiff still had 47 days left to perfect service when Defendant
LaLonde filed his Motion to Quash on February 28, 2013. Therefore, Plaintiff will be allowed
47 days from the date his counsel provides his last known address to properly effect service on
Defendant LaLonde.
Therefore, for the foregoing reasons, it is
ORDERED that Defendant LaLonde’s “Motion to Quash Service” (Doc. No. 27) is
GRANTED. Service on Defendant LaLonde is hereby QUASHED. It is further
ORDERED that, no later than August 30, 2013, Defendant’s counsel shall file, under
restriction level 1, the last known address for Defendant LaLonde. Plaintiff shall have 47 days
from the date Defendant’s counsel files Defendant LaLonde’s address to perfect service of
process, through the United States Marshals Service, on Defendant LaLonde pursuant to Fed. R.
Civ. P. 4.
Dated this 22nd day of August, 2013.

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