Shields v. Duncan et al

Filing 109

ORDER denying 93 Motion for Default Judgment. Plaintiffs shall file proof of proper service on Defendant Motel 9 LLC on or before June 5, 2015. By Judge Raymond P. Moore on 5/21/2015.(tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 14-cv-02231-RM-MEH
JONATHAN SHIELDS, et al.,
Plaintiff,
v.
JENNIFER DUNCAN (personal and official capacities as Plaintiff’s parole officer), et al.,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on “Plaintiff Steven Christiansen’s Motion for Entry of
Default against Motel 9 LLC and for a Hearing on the Amount of The Judgment” (ECF No. 93,
the “Application for Default”). Motel 9 LLC has not responded to Plaintiffs’ initial complaint or
any of the amended complaints filed in this case, nor has it responded to the Application for
Default. As explained below, the Court finds that Motel 9 LLC was not properly served with
process and the Application for Default is DENIED without prejudice.
I.

BACKGROUND
On August 12, 2014, Plaintiffs, designated or convicted sex offenders and their family

members, filed a complaint in this Court against various individuals and entities alleging that the
Sex Offender Management Board has created and enforced an unconstitutional policy that no sex
offender in offense specific treatment may have contact with any minor, even his or her own
family members. This is regardless of the age and gender of the actual victims involved in the
offender’s original conviction or whether there is any actual evidence that the offender poses an
identifiable risk to their children or other minor family members. Plaintiffs allege that the Parole

Board and individual parole officers have also unfairly enforced this policy. Plaintiffs allege that
as a result of this unfair application of this unconstitutional policy, Plaintiffs are being denied
their Constitutional right to familial association. Further, certain Plaintiffs allege they are forced
to live in sub-standard motels after they are released from prison because their parole officers do
not permit them to live with their families. Those Plaintiffs have also brought Eighth
Amendment claims against their parole officers for forcing them to live in these conditions and
state law claims against the motels based on the unfit living conditions they were subject to.
Motel 9 LLC is one of the defendant motels being charged with state law violations as a
result of the alleged unfit living conditions Plaintiff Steven Christiansen (“Christiansen”)
experienced when he was forced to live there by his parole officer. A Summons was filed with
the Court on March 30, 2015 (ECF No. 80) indicating that Motel 9 LLC was served on February
20, 2015. However, Motel 9 LLC never filed an answer or moved to dismiss the Complaint. On
April 19, 2015 Christiansen filed the instant Application for Default seeking an order from this
Court of default judgment against Motel 9 LLC and also requesting a damages hearing. (ECF
No. 93.) The Application for Default states that Motel 9 LLC was served process via David
Kang, who “represented that he was authorized to accept service for Daniel E. Kim, Registered
Agent for Motel 9 LLC.” (ECF No. 93 at 2.)
II.

ANALYSIS
Federal Rule of Civil Procedure 55(a) provides that “[w]hen a party against whom a

judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure
is shown by affidavit or otherwise, the clerk must enter the party’s default.” As a threshold
showing that a party has failed to “plead or otherwise defend,” a party must demonstrate that
process was correctly served on the defendant. Since Motel 9 LLC is an “unincorporated
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association,” the adequacy of process is determined by reference to Fed. R. Civ. P. 4(h), which
provides that process must be effected “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 . . . .” Fed. R. Civ. P. 4(h)(1)(B); see also
Villanueva v. Account Discovery Sys., LLC, No. 14-cv-00395, --- F.Supp.3d ----, 2015 WL
148965, at *4 n.2 (D. Colo. Jan. 12, 2015) (“The service of process requirements under Fed. R.
Civ. P. 4(h) also customarily apply to a limited liability company”). Alternatively, process on a
company may be accomplished “in the manner prescribed by Rule 4(e)(1) for serving an
individual,” Fed. R. Civ. P. 4(h)(1)(A), which allows for service by “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 . . . .” Fed. R. Civ. P. 4(e)(1). The Colorado
rules provide in relevant part that “personal service” may be accomplished
[u]pon any form of . . . limited liability company . . . by delivering a copy thereof
to the registered agent for service as set forth in the most recently filed document
in the records of the secretary of state of this state or any other jurisdiction, or one
of the following:
...
(G) If no person listed in subsection (4) of this rule can be found in this state,
upon any person serving as a shareholder, member, partner, or other person
having an ownership or similar interest in, or any director, agent, or principal
employee of such entity, who can be found in this state, or service as otherwise
provided by law.
C.R.C.P. 4(e)(4).
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Plaintiff Christiansen asserts in the Application for Default that Daniel E. Kim is the
registered agent for service of process on Motel 9 LLC. (ECF No. 93 at 2; see also ECF No. 80
(listing Daniel Kim as the registered agent for Motel 9 LLC)). However, the Application for
Default states that Motel 9 LLC was served via service on David Kang after “Mr. Kang
represented that he was authorized to accept service for Daniel E. Kim, Registered Agent for
Motel 9 LLC.” (Id.; see also ECF No. 80.) There is nothing in the record to indicate that Mr.
Kang was a proper person for receipt of service for Motel 9 LLC. In fact, Christiansen’s own
Application for Default lists Daniel Kim as the registered agent for service for Motel 9 LLC.
“The purpose of Rule 4(h) is to ensure that when a litigant serves process on a
corporation, the process is delivered to a person of sufficient rank and control in the corporation
such that the court can be reasonably assured that those corporate officials responsible for
responding to the suit will actually be apprised of its pendency.” Inversora Murten SA v.
Energoprojekt Holding Co., No. 06-cv02312-MSK, 2009 WL 179463, at *4 (D. Colo. Jan. 22,
2009) (citations omitted). The record is devoid of evidence demonstrating that Mr. Kang is an
officer or appropriate agent of Motel 9 LLC on whom proper service could be made and who
would be an appropriate individual to make those responsible for responding to the suit apprised
of its pendency. See Id. The Court therefore finds that service on Motel 9 LLC via Mr. Kang
was insufficient. Fed. R. Civ. P. 4(h)(1); C.R.C.P. 4(e)(4).
“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.” Fed. R. Civ. P.
4(m). Local Rule 41.1 further authorizes the Court discretion to “issue an order to show cause
why a case should not be dismissed for failure to prosecute or failure to comply with these rules,
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the Federal Rules of Civil Procedure, or any court order.” D.C. Colo. L. Civ. R. 41.1. “If good
cause is not shown, a district judge . . . may enter an order of dismissal with or without
prejudice.” Id.; see also Pell v. Azar Nut Co., Inc. 711 F.2d 949, 950 n.2 (10th Cir. 1983)
(“when a court finds that service is insufficient but curable, it generally should quash the service
and give the plaintiff an opportunity to re-serve the defendant”) (citing 5 C. Wright & Miller,
Federal Practice and Procedures § 1354, 586-87 (1969)). Because service on Motel 9 LLC is
“insufficient but curable,” Plaintiff will be allowed an opportunity to properly serve Motel 9
LLC with process. Id.
III.

CONCLUSION
Having found that Motel 9 LLC has not been properly served, it is ORDERED that:

1. Plaintiff Steven Christiansen’s Motion for Entry of Default against Motel 9 LLC and for a
Hearing on the Amount of The Judgment (ECF No. 93) is DENIED without prejudice;
2. Plaintiffs shall file proof of proper service on Defendant Motel 9 LLC on or before June 5,
2015 or risk dismissal of Motel 9 LLC as a defendant in this matter.

DATED this 21st day of May, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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