of aver v. Wal-Mart Stores, Inc

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 7 Report and Recommendations, denying 6 pla's motion for default; Plaintiff shall effect proper service on the Defendant and file proof of the same with this Court on or before August 1, 2011. Failure to do so may result in dismissal of this action without further notice.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

STEVE DAVID of aver,
Case No. 2:10-CV-00375-EJL
Plaintiff,
ORDER ON REPORT AND
RECOMMENDATION

v.
WAL-MART STORES, INC.,
Defendant.

On May 16, 2011, United States Magistrate Judge Larry M. Boyle issued a Report and
Recommendation (“Report”), recommending that Defendants’ Motion for Default be denied and
ordering the Plaintiff to properly serve the Defendant by June 3, 2011. (Dkt. No. 7.) Any party may
challenge a magistrate judge’s proposed recommendation by filing written objections within ten days
after being served with a copy of the Report and Recommendation. 28 U.S.C. § 636(b)(1)(C). The
district court must then “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. The district court may
accept, reject, or modify in whole or in part, the findings and recommendations made by the
magistrate judge. Id.; see also Fed. R. Civ. P. 72(b)(3). Plaintiff filed objections challenging the
jurisdiction of the Magistrate Judge to issue the Report. (Dkt. No. 10.) The Court finds as follows.
ORDER - 1

Discussion
Plaintiff, Steven David of aver, initiated this action by filing his Complaint against Defendant
Wal-Mart Stores, Inc. on July 28, 2010. (Dkt. No. 1.) Thereafter, on January 26, 2011, Plaintiff filed
an Amended Complaint. (Dkt. No. 2.) On March 22, 2011, Plaintiff filed a Return of Summons
wherein he purports service was made by one David Bruce Allen upon Samuel G. Whipple, shift
manager, at the Wal-Mart Store in Ponderay, Idaho. (Dkt. No. 4.) On May 5, 2011, Plaintiff filed his
Motion for Entry of Default alleging Defendant had failed to appear in this action after having been
properly served. (Dkt. No. 5.)
The case was initially assigned to Magistrate Judge Boyle in the Court’s random draw.
Magistrate Judge Boyle considered Plaintiff’s Motion for Entry of Default and issued an Order
denying the same on the ground that Defendant had not been served. (Dkt. No. 7.) However, because
the parties had not consented to a Magistrate Judge, the Order was converted into a Report and
Recommendation and the case was reassigned to this Court for review of the same. (Dkt. No. 9.)
In his Report, Magistrate Judge Boyle concluded that Plaintiff’s attempted service upon the
shift manager at Wal-Mart was insufficient to properly effect service upon Wal-Mart Stores, Inc.
(Dkt. No. 7.) The sum and substance of Plaintiff’s objection is a challenge to Magistrate Judge
Boyle’s jurisdiction under 28 U.S.C. § 636 to rule upon the Motion for Entry of Default in this case.
(Dkt. No. 10.) Plaintiff’s objection, however, is moot at this stage given the reassignment of this case
to this Court. (Dkt. No. 9.) Having reviewed the record herein de novo and Plaintiff’s submissions,
this Court agrees with the Magistrate Judge’s conclusion that Plaintiff has not properly served the
Defendant in this action but differs in its analysis.

ORDER - 2

In order for Plaintiff to properly serve Wal-Mart Stores, Inc., he will need to do so in
accordance with Federal Rule of Civil Procedure 4 as it applies to a corporation. See Butcher's Union
Local 498, United Food and Commercial Workers v. SDC Investment, Inc., 788 F.2d 535, 538 (9th
Cir. 1986) (explaining that plaintiff bears the burden of establishing that proper service was
effected). The Report cites to Federal Civil Rule of Procedure 4(d)(3). (Dkt. No. 7.) However,
service upon a corporation is governed by Rule 4(h), which states in relevant part:
Unless federal law provides otherwise or the defendant's waiver has been filed, a
domestic or foreign corporation ... that is subject to suit under a common name, must
be served:
(1)
in a judicial district of the United States:
(A)
in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(B)
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 and-if the agent
is one authorized by statute and the statute so requires-by also mailing
a copy of each to the defendant....
Thus, service under Rule 4(h) can be accomplished by either 1) the manner prescribed by Rule
4(e)(1) or 2) by delivering a copy of the summons and complaint to an officer, managing or general
agent, or any other agent authorized by appointment or law. The Court will analyze both options
below.
Under the first option, service can be effectuated on a corporation “in the manner prescribed
for individuals by subdivisions (e)(1).” Fed. R. Civ. P. 4(h)(1)(A). Rule 4(e) states that “service upon
an individual from whom a waiver has not been obtained and filed ... may be effected ... (1) pursuant
to the law of the state in which the district court is located, or in which service is effected.” Fed. R.
Civ. P. 4(e). In Idaho, the law for serving a corporation is found in Idaho Rule of Civil Procedure
(“IRCP”) 4(d)(4)(A) and (B) which states:

ORDER - 3

(A)

Upon a domestic or foreign corporation by delivering a copy of the summons
and complaint to an officer, managing or general agent, or to any other agent
authorized by appointment or by statute of this state to receive service of
process....

(B)

Whenever any foreign corporation which has qualified in the state by filing
with the Secretary of State or a domestic corporation or association shall not
have designated a person actually residing in the state upon whom service of
process can be made, or whenever such agent of a corporation shall resign,
be removed from office, or shall have died or shall have moved from the
state, or if after due diligence neither the designated agent of the corporation
nor any officer or managing agent of the corporation can be found within the
state, then service of any summons and complaint against the corporation
may be made by the party serving the same by mailing copies of the summons
and complaint by registered or certified mail to the corporation addressed to
its registered place of business and to the president or secretary of the
corporation at the addresses shown on the most current annual statement filed
with the Secretary of State. Service shall be complete upon such mailing by
certified or registered mail. The party or attorney serving the corporation
under this paragraph shall make a return certificate indicating compliance
with the provision of this rule and attaching a receipt of the mailing.

IRCP 4(d)(4)(A) and (B). Plaintiff's efforts at serving Defendant in this case do not satisfy either of
the two state law requirements listed above. Based on the Return of Service, there is no evidence that
Plaintiff has served “an officer, managing or general agent, or ... any other agent authorized ... to
receive service of process” on the Defendant’s behalf as required by IRCP 4(d)(4)(A). (Dkt. No. 4.)
Service upon the shift manager does not satisfy the requirements of IRCP 4(d)(4)(A). Instead,
Defendant has a registered agent in Idaho to whom service should be made. See
http://www.sos.idaho.gov. Thus, Plaintiff’s attempted service as reflected in the Return of Service
does not satisfy the requirements of IRCP 4(d)(4)(A). (Dkt. No. 4.) Further, because Defendant has
a registered agent in Idaho, the provisions of IRCP 4(d)(4)(B) do not apply here.
Under the second option, service may be made by delivering a copies of the Summons and
Complaint to Defendant’s officer, managing or general agent, or any other agent authorized to

ORDER - 4

receive service of process. Fed. R. Civ. P. 4(h)(1)(B). Again here, Plaintiff delivered the Summons
and Complaint to the shift manager at the local Wal-Mart store in Ponderay, Idaho. (Dkt. No. 4.)
There is no indication this individual is one of the qualifying individuals upon whom service may
be made under Rule 4(h)(1)(B). Further, as discussed in the Report, there is no indication that the
shift manager here is “an individual who stands in such a position as to render it fair, reasonable and
just to imply the authority on his part to receive service.” (Dkt. No. 7, p. 3) (citation omitted).
Accordingly, the Court finds Plaintiff has not delivered the Summons and Complaint to the
appropriate party so as to properly effectuate service under Rule 4(h)(1)(B).
Because neither of the service options under Rule 4(h)(1)(A) or (B) have been met here, the
Court concludes that jurisdiction over Defendant in this case is lacking. As correctly stated in the
Report, Plaintiff’s “status as a pro se litigant does not excuse his failure to comply with the
requirements of Rule 4.” (Dkt. No. 7, pp. 3-4) (citation omitted). The ramifications for failing to
properly serve a party are found in Rule 4(m) which states:
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).
Here, the initial Complaint was filed on July 28, 2010. (Dkt. No. 1.) The Amended
Complaint was filed on January 26, 2011. (Dkt. No. 2.) As such, the time for completing service
expired on May 26, 2011. See Fed. R. Civ. P. 4(m). Because Plaintiff is proceeding pro se in this
matter, however, the Court will afford him an additional limited amount time in which to properly
effect service upon the Defendant in this matter until July 18, 2011. See Moore v. Agency for Int'l

ORDER - 5

Development, 994 F.2d 874, 876 (D.C. Cir. 1993) ( “Pro se litigants are allowed more latitude than
litigants represented by counsel to correct defects in service of process and pleadings.”). Failure to
do so may result in dismissal of this action without further notice. See Fed. R. Civ. P. 4(m).
ORDER
Having conducted a de novo review of the Report and Recommendation and this Court being
fully advised in the premises, IT IS HEREBY ORDERED that the Report and Recommendation
entered on May 16, 2011, (Dkt. No. 7), should be, and is hereby, INCORPORATED by reference
and ADOPTED AS AMENDED HEREIN.
NOW THEREFORE, IT IS HEREBY ORDERED as follows:
1)

Plaintiff’s Motion for Default (Dkt. No. 6) is DENIED

2)

Plaintiff shall effect proper service on the Defendant and file proof of the same with
this Court on or before August 1, 2011. Failure to do so may result in dismissal of
this action without further notice.

DATED: June 27, 2011

Honorable Edward J. Lodge
U. S. District Judge

ORDER - 6