Gill v. Waikiki Lanai, Inc. et al
ORDER GRANTING DEFENDANT LARRY MACKEY'S MOTION TO DISMISS 23 . Excerpt of order: ~ "Plaintiff's Complaint is HEREBY DISMISSED WITHOUT PREJUDICE as to all Defendants. Plaintiff has until September 2, 2011 to file an amended complaint. The Court CAUTIONS Plaintiff that, if he fails to file his amended complaint by September 2, 2011, the Court will dismiss this action with prejudice." ~ Signed by JUDGE LESLIE E. KOBAYASHI on 8/1 8/2011. [Order follows hearing held 7/25/2011 on Motion to Dismiss. Minutes of hearing: doc. no. 34 ] (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WAIKIKI LANAI, INC., LARRY
MACKEY & RON BRUCE,
CIVIL NO. 10-00557 LEK-RLP
ORDER GRANTING DEFENDANT LARRY MACKEY’S MOTION TO DISMISS
Before the Court is Defendant Larry Mackey’s (“Mackey”)
Motion to Dismiss Complaint (“Motion”), filed on May 5, 2011.
Plaintiff Arthur Gill (“Plaintiff”) filed an untimely memorandum
in opposition on July 6, 2011, and Mackey filed his reply on
July 11, 2011.
Without leave of court, Plaintiff filed a
surreply and a supplemental surreply on July 18, 2011 and
July 20, 2011, respectively.
July 25, 2011.
This matter came on for hearing on
Mark Valencia, Esq., appeared on behalf of
Mackey, and Andre Wooten, Esq., appeared on behalf of Plaintiff.
After careful consideration of the Motion, the arguments of
counsel, and the relevant legal authority, Mackey’s Motion is
HEREBY GRANTED for the reasons set forth below.
Plaintiff is an African-American male formerly employed
by the Association of Apartment Owners Waikiki Lanais (“AOAO
Waikiki Lanais”)1 as a maintenance and security officer.
[Complaint at ¶ 1; Reply at 8.]
Lanais for eight years.2
He worked for AOAO Waikiki
[Complaint at ¶ 1.]
Plaintiff claims that Defendant Ron Bruce (“Bruce”), a
former co-worker, “was allowed to harass Plaintiff on the job
verbally in a belligerent manner[.]”
[Id. at ¶ 9.]
also alleges that Bruce sabotaged Plaintiff’s work by opening
trash chutes that Plaintiff had closed while he changed the
apartment-condominium complex’s dumpsters.
Plaintiff claims that
he reported Bruce’s conduct to his supervisor, Mackey, but that
Mackey took no action.
[Id. at ¶¶ 9-10.]
According to Plaintiff, an unnamed relief employee was
Plaintiff refers to his employer, AOAO Waikiki Lanais, as
“Waikiki Lanai, Inc.” in his Complaint. According to Keali`i S.
Lopez, Director of the State of Hawai`i Department of Commerce
and Consumer Affairs (“DCCA”), “WAIKIKI LANAI INC. is not
registered in this Department either as a corporation,
partnership, limited liability company, limited liability
partnership or trade name.” [Reply, Decl. of Mark G. Valencia
(“Valencia Decl.”), Exh. G (DCCA statements dated 6/13/11), at
Plaintiff claims that his employer terminated him “in or
about June 2009”, [Complaint at ¶ 8,] but that allegation is not
supported by the record. According to a decision of the
Employment Security Appeals Office (“Appeals Office”), an
administratively attached agency in the State of Hawai`i
Department of Labor and Industrial Relations (“DLIR”), AOAO
Waikiki Lanais terminated Plaintiff on March 11, 2009. In re
Gill, Decision No. 0901356, dated May 11, 2009 (“Appeals Office
Decision”), at 2. The Appeals Office Decision is attached to the
Reply as Exhibit D to the Declaration of Mark G. Valencia. [Dkt.
consistently late to work, causing Plaintiff to remain at the
complex beyond his required shifts.
Plaintiff claims that he was
late to work on only one occasion.
Plaintiff alleges that Mackey
fired him, after eight years on the job, ostensibly for that
single late arrival.
[Id. at ¶¶ 11-12.]
Following his termination, Plaintiff filed a claim for
unemployment compensation with the DLIR.3
claim on April 3, 2009.
The DLIR denied his
[Appeals Office Decision at 1.]
On April 8, 2009, Plaintiff appealed the DLIR’s
decision to the Appeals Office.
The Appeals Office held a
hearing on the matter on April 30, 2009.
The hearings officer
found that Plaintiff’s employer gave him six written warnings
regarding his tardy arrivals from July 23, 2003 to June 20, 2007,
and that Plaintiff was late to work twenty-four times from
February 1, 2009 to March 10, 2009.
[Id. at 1-2.]
officer concluded that AOAO Waikiki Lanais lawfully discharged
Plaintiff on March 11, 2009 for misconduct connected with work.
[Id. at 3.]
Plaintiff also filed a claim with the Hawai`i Civil
Rights Commission (“HCRC”).4
On July 1, 2010, the HCRC
It is not clear from the record when Plaintiff filed his
It is not clear from the record when Plaintiff filed his
HCRC claim. Mackey claims that Plaintiff filed the HCRC claim on
August 24, 2009. [Reply at 5.]
“recommended that the case be closed on the basis of no cause.”5
[Valencia Decl., Exh. E (Letter dated July 1, 2010 to Arthur Gill
from William D. Hoshido, HRCR Executive Director), at 1.]
HCRC informed Plaintiff that he had ninety days to file a civil
action against his employer.
Plaintiff filed a timely Complaint on
September 28, 2010.
On January 26, 2011, Plaintiff served Mackey
by way of a process server.
(dkt. no. 8).]
[Return of Service, filed 1/26/11
Plaintiff alleges he also served “Waikiki Lanai,
Inc.” through Mackey on the same day.
1/26/11 (dkt. no. 9).]
[Return of Service, filed
As of the date of this order, Plaintiff
has yet to serve Bruce.
On February 16, 2011, Mackey filed his Motion to
Dismiss, to Strike and/or for More Definite Statement.
On February 17, 2011, the Court issued an entering order
denying this motion without prejudice due to Mackey’s failure to
comply with Rule LR7.2(f) of the Local Rules of Practice of the
United States District Court for the District of Hawai`i (“Local
[Dkt. no. 12.]
The standard used by the HCRC is whether its Executive
Director has “reasonable cause to believe that an unlawful
discriminatory practice has occurred[.]” Haw. Rev. Stat.
On February 25, 2011, Mackey filed his Answer to
Complaint Filed 9/28/10.
[Dkt. no. 13.]
Mackey denied most of
Plaintiff’s allegations, including the allegations that Mackey
has any association with, relationship to, or knowledge of
“Waikiki Lanai, Inc.”
Mackey also raised several affirmative
[Id. at 1-2.]
On June 2, 2011, Plaintiff obtained an entry of default
against “Waikiki Lanai, Inc.”
[Doc. No. 26-5.]
claimed he properly served “Waikiki Lanai, Inc.” with a copy of
the Complaint on January 26, 2011 and it is in default because it
did not file an answer to the Complaint.
[Mem. in Supp. of
Motion for Entry of Default Against Defendant Waikiki Lanai Inc.,
filed 6/2/11 (dkt. no. 26-1), at 2.]
In the instant Motion, Mackey argues that the Court
lacks personal jurisdiction over him because Plaintiff’s service
He also contends that, since the other two
defendants remain unserved, the Court should dismiss the
Complaint as to all Defendants without prejudice.
[Mem. in Supp.
of Motion at 8.]
Mackey claims that Plaintiff served an incomplete copy
of the Complaint on him on January 26, 2011.
Mackey contends that the second page was missing from the
[Motion, Decl. of Larry Mackey (“Mackey Decl.”) at
¶¶ 2, 4.]
He claims that his lawyer supplied him with the
missing page on February 12, 2011.
[Id. at ¶ 7.]
emphasizes that January 26, 2011 was “the 120th day after
[Mem. in Supp. of Motion at 8 (citation omitted).]
According to Mackey, “[s]ervice of a partial complaint
is insufficient to complete service.”
[Id. at 10 (citations
Mackey claims that, absent a defendant’s waiver or
consent, the failure to properly serve a defendant deprives the
court of personal jurisdiction over that defendant.
Plaintiff’s Memorandum in Opposition
Plaintiff filed an untimely memorandum in opposition on
July 6, 2011.7
[Dkt. no. 28.]
Local Rule 7.4 provides that
“[a]n opposition to a motion set for hearing shall be served and
filed not less than twenty-one (21) days prior to the date of
As further provided by Local Rule 6.1:
Whenever these rules require papers or
documents to be filed “not more than” or “not less
than” a designated period after or before a
specified event, and whenever the outside limit of
A copy of the Complaint that Plaintiff served on Mackey is
attached to the Motion as Exhibit A to the Declaration of Matthew
K. Chung (“Chung Declaration”). [Doc. no. 23-3.] The missing
page of the Complaint – page two – is attached to the Motion as
Exhibit B to the Chung Declaration. [Doc. no. 23-4.]
The Court also observes that Plaintiff’s untimely
memorandum in opposition was also incomplete. Plaintiff failed
to attach declarations and exhibits that he referenced in his
memorandum in opposition. [Mem. in Opp. at 4.]
the designated period is not a business day, such
papers or documents shall be filed no later than
the previous business day to ensure filing “not
more than” or “not less than” the designated
period. . . .
In the instant case, the Court scheduled the hearing on
the Motion for July 25, 2011.
[Dkt. no. 24.]
July 4, 2011 holiday, Plaintiff’s memorandum in opposition was
due no later than July 1, 2011.
At the hearing, Plaintiff’s counsel argued that he
filed his memorandum in opposition late because he was confused
as to whether the instant Motion was actually before the Court.
He stated that he believed the Court dismissed the instant Motion
because it was frivolous.
The Court questions the sincerity of
On May 4, 2011, Mackey filed a document that was also
titled Motion to Dismiss Complaint.
[Dkt. no. 21.]
set this motion for hearing on July 25, 2011.
[Dkt. no. 22.]
the same day, the Clerk’s Office issued a “CORRECTIVE ENTRY”
informing Mackey that he needed to refile his motion in the
correct electronic format.
On May 5, 2011, Mackey filed the
instant Motion, [dkt. no. 23,] which was also set for hearing on
July 25, 2011, [dkt. no. 24].
That same day, the Court
terminated the May 4, 2011 motion because it was refiled.
The Court never terminated the instant Motion.
Moreover, the Court has never classified any motion filed in this
case as “frivolous”.
Plaintiff is represented by Andre Wooten, Esq., an
attorney who has often appeared in this district court, is
familiar with its docketing system, and is – or should be familiar with its rules and his obligations under those rules.
As recently observed by this district court:
McNally is represented by an attorney,
[Andre Wooten,] who is often in this court. He
certainly knows or should know the rules and
obligations concerning motions practice before
this court. On many occasions, however, McNally’s
counsel has failed to follow court rules governing
matters such as the timely filing of documents or
motions for continuances of hearings. See, e.g.,
Matubang v. City & County of Honolulu, 2010 WL
1850184, *2 n.6 (D. Haw., May 7, 2010) (noting
that an opposition had not been timely filed);
Stucky v. Haw. Dep’t of Educ., 2008 WL 1959738, *2
(D. Haw. May 6, 2008) (denying Rule 56(f) request
because it was filed one month after the hearing
on the motion); Mabson v. Ass’n of Apartment
Owners of Maui Kamaole, Civ. No. 06–00235 DAE–LEK,
slip op. at 28, 2007 WL 2363349 (D. Haw.,
Aug. 13, 2007) (noting that no satisfactory
explanation had been provided to the court for the
untimely filing of an opposition); Kaulia v.
County of Maui, 504 F. Supp. 2d 969, 979 n.14 (D.
Haw. 2007) (noting that the opposition had been
filed one day late); Epileptic Found. v. County of
Maui, 300 F. Supp. 2d 1003, 1006 n.3 (D. Haw.
2003) (noting that an opposition had been filed
one day late and that declarations had been filed
several days late); Perkins v. City & County of
Honolulu, Civ. No. 97–01551, slip op. at 5–6 (D.
Haw. Nov. 23, 1998) (order sanctioning counsel and
listing eight other cases in which local rules
were not followed, including many instances of
failing to file timely oppositions); see also
Shipley v. Haw., 2006 WL 2474059, *5 (D. Haw.
Aug. 24, 2006) (reminding counsel to file a timely
McNally v. Univ. of Hawaii, --- F. Supp. 2d ----, Civ. No.
09–00363 SOM/KSC, 2011 WL 322533, at *7 (D. Hawai`i
Jan. 28, 2011) (footnote omitted).
In McNally, Chief United
States District Judge Susan Oki Mollway found that Mr. Wooten’s
failure to follow the applicable procedures and requirements was
fatal to his client’s request to continue a hearing.
Judge Mollway noted that Mr. Wooten’s failure to comply with
court rules placed “undue burdens” on both opposing counsel and
Id. at *20 n.1.
This Court also observes that, since the McNally
decision, Mr. Wooten has continued to violate this district
On July 26, 2011, for instance, Chief Judge
Mollway observed that Mr. Wooten: filed an untimely opposition to
a motion for summary judgment; failed to submit courtesy copies,
even after court staff called him; and failed to properly tab his
concise statement of facts and its accompanying documents.
McCormack v. City & Cnty. of Honolulu, et al., CV 10-00293 SOMKSC, Order Granting in Part, Denying in Part Def. City & County’s
Motion for Summary Jdgmt. (dkt. no. 83), at 7.
More recently, on
August 10, 2011, United States District Judge David Alan Ezra
“strongly caution[ed] Mr. Wooten to pay close attention to filing
and other deadlines” after Mr. Wooten failed to file a timely
response to a motion to dismiss.
Park v. Oahu Transit Servs.,
Inc., CV 10-00445 DAE-KSC, Order: (1) Granting Defs.’ Motion to
Dismiss; etc. (dkt. no. 51), at 8 n.7.
Local Rule 7.4 provides that “[a]ny opposition or reply
that is untimely filed may be disregarded by the court or
stricken from the record.”
In the instant case, Plaintiff did
not request an extension of the deadline to file his memorandum
Even if the Court construed the untimely
memorandum and counsel’s arguments at the hearing as an afterthe-fact request for an extension, Plaintiff failed to provide a
reasonable explanation why he could not comply with the original
As a result, the Court will disregard Plaintiff’s
memorandum in opposition and will treat the Motion as unopposed.
Given the Court’s decision to disregard Plaintiff’s
memorandum in opposition, the Court will consider Mackey’s reply
as similar to a supplemental memorandum in support of the Motion.
Mackey first argues that Plaintiff cannot demonstrate either good
cause or excusable neglect for his failure to comply with the
120-day service deadline in Fed. R. Civ. P. 4(m).
contends that such a showing is required for both himself and
[Reply at 7.]
Second, Mackey contends that the Court must dismiss the
Complaint as to “Waikiki Lanai, Inc.” because it is a nonexistent entity.
Mackey explains that, although the Complaint
alleges that “‘Defendant WAIKIKI LANAI INC. does business under
the name Waikiki Lanai and is a corporation duly organized in the
City and County of Honolulu, State of Hawaii as an independent
corporation[,]’” [id. (quoting Complaint at ¶ 2),] “neither
‘Waikiki Lanai, Inc.’ nor ‘Waikiki Lani, Inc.’ are Hawai`i
corporations[,]” [id. at 8].
Mackey cites DCCA records attached
to his Reply, which indicate “that there is no registered entity
known as ‘Waikiki Lanai Inc.’” in Hawai`i.
Finally, Mackey suggests that Plaintiff incorrectly
named “Ron Bruce” as a defendant in this action.
that, even if Bruce is a proper defendant, nearly half a year has
elapsed since the expiration of Rule 4(m)’s 120-day service
deadline and Bruce remains unserved.
Mackey notes that Plaintiff
has yet to file a motion to extend the time to serve Bruce and
that the deadline to add or name additional parties was July 1,
See Rule 16 Scheduling Order, filed 3/30/11 (dkt. no. 20),
Insofar as this Court is treating the instant Motion as
unopposed, the Court need not examine Mackey’s responses to the
arguments in Plaintiff’s untimely memorandum in opposition.
Plaintiff’s Surreply and Supplemental Surreply
On July 18, 2011, Plaintiff filed his Declaration of
Counsel in Opposition to Defendant Larry Mackey’ (sic) Motion to
Dismiss Filed May 5, 2011 (“Surreply”).
[Dkt no. 30.]
July 20, 2011, Plaintiff filed his Errata Declaration of Counsel
in Opposition to Defendant Larry Mackey’ (sic) Motion to Dismiss
Filed May 5, 2011 (“Supplemental Surreply”).
[Dkt no. 31.]
Plaintiff did not obtain leave of court to file these
See Local Rule LR7.4 (stating that, other than the
opposition and reply, “[n]o further or supplemental briefing
shall be submitted without leave of court”).
The Court therefore
will not consider these documents.
Motion to Dismiss for Lack of Personal Jurisdiction
Under Rule 12(b)(2) of the Federal Rules of Civil
Procedure, a defendant may bring a motion to dismiss for lack of
Although the defendant is the moving
party, the plaintiff must make a prima facie showing of facts
establishing personal jurisdiction by a preponderance of the
Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d
1007, 1020 (9th Cir. 2002).
In considering a motion to dismiss for lack of personal
jurisdiction, the court must accept uncontroverted allegations in
the complaint as true.
Dole Food Co. v. Watts, 303 F.3d 1104,
1108 (9th Cir. 2002) (citation omitted).
If the defendant
presents evidence to contradict the allegations in the complaint,
the court must determine whether the plaintiff’s pleadings and
proof make a prima facie showing of personal jurisdiction, and
the court must resolve any conflicts between the parties’
evidence in the plaintiff’s favor.
Dismissal for Insufficient Process and Service of Process
“A federal court is without personal jurisdiction over
a defendant unless the defendant has been served in accordance
with Fed. R. Civ. P. 4.”
Travelers Cas. & Sur. Co. of Am. v.
Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (citations and
quotation marks omitted).
Under Rules 12(b)(4) and 12(b)(5) of
the Federal Rules of Civil Procedure, a party may bring a motion
to dismiss for “insufficient process” and “insufficient service
of process”, respectively.
Whereas a Rule 12(b)(4) motion
challenges the sufficiency of the content of the summons, a Rule
12(b)(5) motion challenges the method of service attempted by the
To determine whether service and service of process
were proper for the purposes of both Rule 12(b)(4) and (b)(5),
courts look to the requirements of Rule 4 of the Federal Rules of
See 5B Charles Alan Wright, et al., Federal
Practice & Procedure § 1353 (3d ed.); accord Taniguchi v. Native
Hawaiian Office of the Att’y Gen., Civ. No. 09-00117 SOM-KSC,
2009 WL 1404731, at *3 (D. Hawai`i May 15, 2009).
As this district court recently explained:
“‘Rule 4 is a flexible rule that should be
liberally construed so long as a party receives
sufficient notice of the complaint.’” Direct Mail
Specialists [v. Eclat Computerized Techs., Inc.],
840 F.2d [685,] 688 [(9th Cir. 1988)] (quoting
United Food & Commercial Workers Union v. Alpha
Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984)).
The plaintiff bears the burden of establishing
that service is valid under Rule 4. Brockmeyer v.
May, 383 F.3d 798, 801 (9th Cir. 2004) (citations
Rule 4(e) states generally that an individual
may be served by any of the following methods: (1)
following state law for serving a summons; (2)
delivering a copy of the summons and complaint to
the individual personally; (3) leaving a copy of
the summons and complaint at the individual’s
dwelling or usual place of abode with someone of
suitable age and discretion who resides there; or
(4) delivering a copy of the summons and complaint
to an agent authorized by appointment or by law to
receive service of process. Fed. R. Civ. P. 4(e).
Brewer v. Ass’n of Apartment Owners of Southpointe at Waiakoa
Condo. Homeowners Ass’n, Cv. No. 10–00315 DAE–BMK, 2011 WL
2532757, at *1 (D. Hawai`i June 23, 2011) (footnote omitted).
Rule 4(m) requires service of the summons and complaint
upon a defendant within 120 days after the filing of the
Rule 4(m) states, in pertinent part:
Time Limit for Service. 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
As this district court explained in Brewer:
Absent a showing of good cause, courts have
broad discretion under Rule 4(m) to extend the
time for service or dismiss the action without
prejudice. See In re Sheehan, 253 F.3d. 507, 512
(9th Cir. 2001) (“Rule 4(m) requires a two-step
analysis in deciding whether or not to extend the
prescribed time period for the service of a
complaint. First, upon a showing of good cause
for the defective service, the court must extend
the time period. Second, if there is no good
cause, the court has the discretion to dismiss
without prejudice or to extend the time period.”
(internal citations omitted)); Efaw v. Williams,
473 F.3d 1038, 1040-41 (9th Cir. 2007). In making
extension decisions under Rule 4(m), a district
court may consider factors “like a statute of
limitations bar, prejudice to the defendant,
actual notice of a lawsuit, and eventual service.”
Efaw, 473 F.3d at 1041 (citation omitted).
2011 WL 2532757, at *2.
Mackey argues that the Court should dismiss the
Complaint as to all Defendants due to Plaintiff’s failure to
comply with Rule 4.
Specifically, Mackey argues that Plaintiff
failed to: (1) serve Mackey with a complete copy of the Complaint
within Rule 4(m)’s 120-day service deadline; (2) serve Bruce with
either the Complaint or summons within Rule 4(m)’s 120-day
service deadline; and (3) properly name or serve Plaintiff’s
employer, AOAO Waikiki Lanais.
Rule 4(m) requires a two-step analysis for determining
whether to extend the prescribed time period for service of a
“First, upon a showing of good cause for the
defective service, the court must extend the time period.”
Sheehan, 253 F.3d at 512.
At a minimum, “good cause” requires a
showing of “excusable neglect”.
Lemoge v. United States, 587
F.3d 1188, 1198 n.3 (9th Cir. 2009) (citing Boudette v. Barnette,
923 F.2d 754, 756 (9th Cir. 1991)).8
While the Supreme Court has
described excusable neglect as a “somewhat elastic concept[,]” it
has observed that “inadvertence, ignorance of the rules, or
mistakes construing the rules do not usually constitute excusable
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 392 (1993) (internal quotation marks and
The plaintiff bears the burden of
establishing good cause.
Fed. R. Civ. P. 4(m).
“Second, if there is no good cause, the court has the
discretion to dismiss without prejudice or to extend the time
In re Sheehan, 253 F.3d. at 512 (citation omitted).
The Ninth Circuit has declined to “articulate a specific test
that a court must apply in exercising its discretion under Rule
4(m)[,]” noting “that, under the terms of the rule, the court’s
discretion is broad.”
Id. at 513 (citation omitted).
Mackey’s filings indicate that Plaintiff served Mackey
with an incomplete copy of the Complaint on January 26, 2011,
exactly 120 days after the filing of the Complaint.
The copy of
The Ninth Circuit in Lemoge further observed:
In addition to excusable neglect, a plaintiff may
be required to show the following factors to bring
the excuse to the level of good cause: “(a) the
party to be served personally received actual
notice of the lawsuit; (b) the defendant would
suffer no prejudice; and (c) plaintiff would be
severely prejudiced if his complaint were
587 F.3d at 1198 n.3 (quoting Boudette, 923 F.2d at 756).
the Complaint served on Mackey omitted the second page, which
identified the Defendants and described their connection to this
Mackey ultimately received the missing page of the
Complaint through his lawyer on February 12, 2011, seventeen days
after the expiration of the 120-day service deadline.
Decl. at ¶ 7.]
Rule 4(c)(1) of the Federal Rules of Civil
Procedure requires that a plaintiff serve the summons and
complaint “within the time allowed by Rule 4(m)[.]”
Plaintiff did not serve Mackey with a complete copy of the
Complaint within 120 days of the filing of the Complaint, the
Court finds that Plaintiff failed to comply with the service
requirements of Rule 4(c) and Rule 4(m).
The record indicates that, as of the date of this
order, Plaintiff has yet to serve Bruce with a copy of the
Complaint and summons.
Pursuant to Rule 4(m), Plaintiff was
required to complete service by January 26, 2011.
Plaintiff failed to serve Bruce with a copy of the Complaint and
summons within 120 days of the filing of the Complaint, the Court
finds that Plaintiff has failed to comply with the service
The Court notes that, even if it did consider Plaintiff’s
submissions, they would only reinforce this finding. As Mackey’s
counsel noted at the hearing, Plaintiff’s Exhibit A to his
Supplemental Surreply, which Plaintiff describes as “identical”
to the copy of the Complaint served on Defendants, omits the
second page. [Supplemental Surreply at ¶ 7, Exh. A.]
Plaintiff’s copy of the served Complaint is identical to that
provided by Mackey. [Chung Decl., Exh. A.]
requirements of Rules 4(c) and 4(m).
Finally, the record indicates that Plaintiff named a
non-existent corporation, “Waikiki Lanai, Inc.”, as a defendant
in this matter.
According to the DCCA, “WAIKIKI LANAI INC. is
not registered in this Department either as a corporation,
partnership, limited liability company, limited liability
partnership or trade name.”
[Valencia Decl., Exh. G at 2.]
Plaintiff contends that Mackey accepted service on behalf of
“Waikiki Lanai, Inc.” on January 26, 2011.
filed 1/26/11 (dkt. no. 9).]
[Return of Service,
Mackey, however, submitted a
declaration stating that he signed the return of service because
he thought that the documents named his employer, but, upon
further examination, he realized they were directed to “WAIKIKI
LANAI, INC.” AND “WAIKIKI LANI, INC.”.
[Mackey Decl. at ¶¶ 8-9.]
Mackey states that neither of those entities is his employer, and
he is not authorized to accept service on behalf of either of
[Id. at ¶ 9.]
Mackey also submitted evidence
that neither of those entities is a registered business in
[Valencia Decl., Exh. G.]
Plaintiff has offered no
evidence to rebut Mackey’s argument that Defendant “Waikiki
Lanai, Inc.” is a non-existent corporate entity.
See Dole Food
Co. v. Watts, 303 F.3d 1104, 1108 (9th Cir. 2002) (citations
omitted) (observing that, where a defendant moves to dismiss a
complaint for lack of personal jurisdiction, the plaintiff cannot
simply rest on the allegations in his or her complaint).
result, the Court FINDS that it lacks personal jurisdiction over
“Waikiki Lanai, Inc.”
In light of the Court’s decision to treat the instant
Motion as unopposed, the Court FINDS that Plaintiff has failed to
establish good cause for extending the time period to complete
service on Mackey and Bruce.
The Court further FINDS that, given
Plaintiff’s manifest failure to correctly identify, name, and
serve the appropriate parties, there is no reason for the Court
to exercise its discretion to extend the deadline for service.
Accordingly, the Court FINDS that it lacks personal jurisdiction
over all of the Defendants and DISMISSES the Complaint WITHOUT
PREJUDICE as to all Defendants.
On the basis of the foregoing, Mackey’s Motion to
Dismiss Complaint, filed on May 5, 2011, is HEREBY GRANTED and
Plaintiff’s Complaint is HEREBY DISMISSED WITHOUT PREJUDICE as to
Plaintiff has until September 2, 2011 to file an
The Court CAUTIONS Plaintiff that, if he
fails to file his amended complaint by September 2, 2011, the
Court will dismiss this action with prejudice.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 18, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
ARTHUR GILL V. WAIKIKI LANAI, INC., ET AL; CIVIL NO. 10-00557
LEK-RLP; ORDER GRANTING DEFENDANT LARRY MACKEY’S MOTION TO
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