Kline Enterprises Inc. v. Swenson et al

Filing 105

MEMORANDUM DECISION ORDER granting in part and denying in part 71 Motion to Dismiss. It is granted to the extent it seeks an evidentiary hearing. It is denied in all other respects, without prejudice to the right of Swenson to file a new motio n under Rule 12(b)(5) supported by affidavits to streamline the presentation at the evidentiary hearing. An evidentiary hearing be held on May 20, 2013, at 9:00 a.m. in the Federal Courthouse in Boise, Idaho. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KLINE ENTERPRISES, INC., a California
corporation,
Plaintiff,

Case No. 1:11-CV-535-BLW
MEMORANDUM DECISION AND
ORDER

v.
DOUGLAS SWENSON, an individual;
et al,
Defendants.

INTRODUCTION
The Court has before it a motion to dismiss and for an evidentiary hearing. The
motion is fully briefed and at issue. For the reasons explained below, the Court will grant
in part and deny in part the motion.
ANALYSIS
In an earlier decision, the Court granted plaintiff Kline’s motion for an extension
of time to serve defendant Douglas Swenson. Kline had not served Swenson within the
120 days mandated by Rule 4(m), and he sought an extension under the provision of that
Rule that requires an extension if there is “good cause.” The Court found that Kline had
made that showing. More specifically, after granting all inferences in Kline’s favor, the
Court found inferences from the evidence that Swenson may have been evading service.
The Court accordingly extended the time for service, and Kline eventually served

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Swenson.
Swenson has responded by filing a motion to dismiss under Rules 12(b)(2) and (5),
alleging that the service was not timely and that he is entitled to an evidentiary hearing on
the matter. Because Swenson is focusing on the timeliness of the service of process,
rather than the personal contacts he has with the forum, Rule 12(b)(5) governs the
resolution of his motion. 5B Wright and Miller, Federal Practice & Procedure, § 1353,
at 336-38 (3d ed. 2004) (identifying distinction between Rule 12(b)(2) and Rule
12(b)(5)).
Swenson is entitled to support his Rule 12(b)(5) motion with evidence outside the
pleadings. 5C, Wright and Miller Federal Practice & Procedure § 1364 at 133-34 (3d
ed. 2002). Moreover, the Court has the discretion to hold an evidentiary hearing if
disputed issues of fact exist. Id. at 35 (supp. 2012); see also Blair v City of Worcester,
522 F.3d 105 (1st Cir. 2008) (holding that evidentiary hearing should have been held to
resolve service of process issues raised in Rule 12(b)(5) motion).
Kline responds that Swenson is merely seeking reconsideration of the Court’s
extension order. Kline points out that Swenson’s counsel filed an opposition brief to
Kline’s motion for extension, and thus had a full opportunity to litigate the timeliness of
the service.
The Court disagrees. The standards for resolving a motion for extension are quite
different from those governing a Rule 12(b)(5) motion, and it would be unjust to preclude
a party who lost the former from pursuing the latter. To resolve the motion for extension,
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the Court used a lenient standard that granted all inferences in Kline’s favor. The
evidence did not point to any clear result, and it was only by granting all inferences in
Kline’s favor that the Court could say that Swenson appeared to be evading service. In
other words, the favorable presumption that Kline received on its motion made all the
difference. However, that standard does not apply in the Rule 12(b)(5) context where the
defendant is entitled to submit extra-record evidence and have the Court rule without any
inferential presumptions.
For these reasons, Swenson is entitled to a resolution of his Rule 12(b)(5) motion,
and is entitled to submit evidence outside the pleadings on that motion. The decision
whether to hold an evidentiary hearing is within the Court’s discretion. 5C, Wright and
Miller, supra, at § 1364. Here, the issue whether Swenson was timely served turns on
whether he was evading service. That is a difficult issue to resolve on a cold record.
Consequently, the Court will grant Swenson’s request for an evidentiary hearing.
The issue is not complex, however, and much of the factual background can be set
forth in affidavits. Thus, the issue can be fully presented in a two-hour hearing. Each
side will have one hour to present the testimony of witnesses and cross-examine the
witnesses for the other side. The Court will set that hearing for May 20, 2013, at 9:00
a.m. and it will conclude at 11:00 a.m.
In addition to seeking a hearing, Swenson’s motion seeks dismissal. However,
since the motion was focused exclusively on the hearing issue, and was not supported by
affidavits, the Court will deny the request for dismissal at this time. The Court will direct
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Swenson to file a new motion under Rule 12(b)(5) supported by affidavits that will
streamline the evidentiary hearing. Kline’s response may also use affidavits to streamline
its presentation at the hearing. The use of witnesses should be limited to the presentation
of evidence that depends largely on credibility.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for an
evidentiary hearing and to dismiss (docket no. 71) is GRANTED IN PART AND
DENIED IN PART. It is granted to the extent it seeks an evidentiary hearing. It is
denied in all other respects, without prejudice to the right of Swenson to file a new
motion under Rule 12(b)(5) supported by affidavits to streamline the presentation at the
evidentiary hearing.
IT IS FURTHER ORDERED, that an evidentiary hearing be held on May 20,
2013, at 9:00 a.m. in the Federal Courthouse in Boise, Idaho. Each side will be allotted
one hour total to present witnesses and cross-examine the opponent’s witnesses. The use
of witnesses should be limited to the presentation of evidence that depends largely on
credibility.

Order - 4

DATED: March 25, 2013

Honorable B. Lynn Winmill
Chief U. S. District Judge

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