Mendoza-Jimenes v. Winchester et al

Filing 15

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. The Bonneville County Defendants Motion to Dismiss (Dkt. 4 ) is hereby GRANTED. Defendants Bonneville County, Bonneville County Prosecuting Attorneys Office, Daniel R. Clark, Michael F. Winchester, B onneville County Sheriffs Office, Paul J. Wilde, and Korey Edward Payne are dismissed, with prejudice,5 from this case. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MARIA E. MENDOZA-JIMENES,

Case No. 4:17-cv-00501-DCN
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
BONNEVILLE COUNTY,
BONNEVILLE COUNTY
PROSECUTING ATTORNEYS
OFFICE, DANIEL R. CLARK, in his
personal and official capacity,
MICHAEL F. WINCHESTER, in his
personal and official capacity,
BONNEVILLE COUNTY SHERIFF’S
OFFICE, PAUL J. WILDE, in his
personal and official capacity, KOREY
EDWARD PAYNE, in his personal and
official capacity, KOHL’S
DEPARTMENT STORES, INC.,
SHELLIE COUGHLAN, and JOHN
DOES I-XII,
Defendants.

I. INTRODUCTION
Pending before the Court is Defendants Bonneville County, Bonneville County
Prosecuting Attorney’s Office, Daniel R. Clark, Michael F. Winchester, Bonneville
County Sheriff’s Office, Paul J. Wilde, and Korey Edward Payne’s (“Bonneville County
Defendants”) Motion to Dismiss. Dkt. 4. Having reviewed the record and briefs, the
Court finds that the facts and legal arguments are adequately presented. Accordingly, in
MEMORANDUM DECISION AND ORDER - 1

the interest of avoiding further delay, and because the Court finds that the decisional
process would not be significantly aided by oral argument, the Court will decide the
motion without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(2)(ii). For the reasons set
forth below, the Court GRANTS the Motion.
II. BACKGROUND
Plaintiff Maria Mendoza-Jimenes filed this lawsuit on December 6, 2017. In her
Complaint, Mendoza-Jimenes alleges various civil rights violations against the
Bonneville County Defendants stemming from theft charges Bonneville County filed
against her which were later dropped. Put succinctly, Mendoza-Jimenes alleges that the
Bonneville County Defendants were derelict in their duties and falsely charged and
imprisoned her for a theft she did not commit. According to Mendoza-Jimenes, all of this
could have been avoided had the Bonneville County Defendants performed a competent
and thorough investigation.
In the instant Motion, the Bonneville County Defendants assert that MendozaJimenes failed to properly serve them in compliance with Rule 4 of the Federal Rules of
Civil Procedure. Based upon this deficient service, the Bonneville County Defendants ask
the Court to dismiss all claims against them.
III. LEGAL STANDARD
Rule 4 of the Federal Rules of Civil Procedure governs service of process.
Pursuant to Rule 4(m), it is a plaintiff’s duty to serve each defendant in the case within 90

MEMORANDUM DECISION AND ORDER - 2

days after filing the complaint or request a waiver or service under Rule 4(d). Service
upon a defendant in their individual capacity must conform with Rule 4(e) as follows:
(e) Serving an Individual Within a Judicial District of the United States.
Unless federal law provides otherwise, an individual—other than a minor, an
incompetent person, or a person whose waiver has been filed—may be
served in a judicial district of the United States by:
(1) 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
(2) 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). Serving an individual defendant in his or her official capacity “may
be made personally or by leaving the summons and complaint with an authorized agent at
the defendant’s place of employment.” Gerritsen v. Consulado Gen. De Mexico, 989 F.2d
340, 344 (9th Cir. 1993).
Serving a corporation, partnership, or association must conform with Rule 4(h) as
follows:
(h) Serving a Corporation, Partnership, or Association. Unless federal
law provides otherwise or the defendant’s waiver has been filed, a domestic
or foreign corporation, or a partnership or other unincorporated association
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
MEMORANDUM DECISION AND ORDER - 3

statute so requires—by also mailing a copy of each to the
defendant.
Fed. R. Civ. P. 4(h). Courts require “substantial compliance with Rule 4” and if a plaintiff
fails to substantially comply, a court lacks personal jurisdiction over defendants. Jackson
v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982).
IV. ANALYSIS
Here, the Bonneville County Defendants assert that Mendoza-Jimenes failed to
serve each of them individually and in their professional capacities. In her reply brief,
Mendoza-Jimenes does not discuss service upon the Bonneville County Defendants in
their individual capacity, thus appearing to concede that individual service never
occurred.1
In addition to conceding that none of the Defendants were properly served in their
individual capacity, Mendoza-Jimenes also admits that she failed to post a bond as
required by Idaho State law for her state law claims against the Defendants who are law
enforcement officers. See Idaho Code § 6-610. This failure provides an independent
alternative basis for dismissing the claims against all law enforcement officers in this
case.

1

Mendoza-Jimenes only discusses her attempted service upon a secretary at the Bonneville
County Prosecutor’s Office. It is not clear if Mendoza-Jimenes believed that this service would
apply to each Defendant in their individual and professional capacity, or just professionally. It is
undisputed, however, that Mendoza-Jimenses did not serve any of the Bonneville County
Defendants personally at their dwelling place, or via an authorized agent. The one exception to
this is Defendant Michael F. Winchester, Deputy Prosecuting Attorney for Bonneville County,
who Mendoza-Jimenes personally served. However, that service was untimely and thus void.
Mendoza-Jimenes does not contest the untimeliness of the service upon Winchester.

MEMORANDUM DECISION AND ORDER - 4

The Bonneville County Defendants allege that Mendoza-Jimenes’ only attempt at
service occurred when she left a copy of the Summons and Complaint with a secretary at
the Bonneville County Prosecutor’s Office. The Bonneville County Defendants assert
that this service was insufficient under Rule 4 and that, accordingly, the Court lacks
personal jurisdiction over each of them. The Court agrees.
Mendoza-Jimenes makes a threshold argument concerning the Bonneville County
Defendants’ choice of law in support of their Motion to Dismiss. Mendoza-Jimenes
argues that the Bonneville County Defendants should have asserted Federal Rule of
Procedure 12(b)(5), “insufficient service of process,” rather than Rule 12(b)(2), “lack of
personal jurisdiction,” in their Motion, and that, because they failed to articulate the
correct rule, the Motion is void.
Here, the two rules work together. Because Mendoza-Jimenes failed to properly
serve the Bonneville County Defendants (Rule 12(b)(5)), the Court lacks jurisdiction over
them (Rule 12(b)(2)). See, e.g., Jackson, 682 F.2d at 1347 (finding that the court did not
have personal jurisdiction over a defendant who was not properly served in accordance
with Rule 4). In short, the Bonneville County Defendants could have brought their
Motion under either subsection. The only strict requirement at issue here is the
“fundamental tenet of the Federal Rules of Civil Procedure [] that certain defenses under
Fed. R. Civ. P. 12 must be raised at the first available opportunity or, if they are not, they
are forever waived.” Am. Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104,
1106 (9th Cir. 2000); see also Fed. R. Civ. P. 12(g), (h). There is no violation of this tenet

MEMORANDUM DECISION AND ORDER - 5

in this case as the Bonneville County Defendants raised the issue of personal jurisdiction
in their initial filing with the Court.
The Court turns now to the merits of Mendoza-Jimenes arguments2 that service
upon the secretary at the Bonneville County Prosecutors Office was proper.
As already noted, it is unclear whether Mendoza-Jimenes intended her service at
the Bonneville County Prosecutor’s Office to be personal, professional, or both. Any
argument that this was service as to the Bonneville County Defendants in their individual
capacity fails for two reasons. First, service upon a person in their individual capacity
may never be made by simply leaving a copy of the summons and complaint at that
person’s place of employment. See Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.
1987); Gerritsen v. Consulado Gen. De Mexico, 989 F.2d 340, 344 (9th Cir. 1993).
Second, there is no indication that the secretary was any of the Bonneville County
Defendants’ authorized agent. As Mendoza-Jimenes does not contest individual service,
the Court will not discuss this issue further and finds in favor of the Bonneville County

2

In Naranjo v. Idaho Dep’t of Correction, 265 P.3d 529 (Idaho Ct. App. 2011), the Idaho Court
of Appeals addressed, and rejected, arguments similar to those Mendoza-Jimenes asserts here.
Because there are numerous federal cases on point here, the Court will not include an in-depth
review of Naranjo. However, the Court notes that Idaho state courts have rejected arguments that
inexperience, mistake, reliance on conversations with other attorneys, and actual notice excuse
strict compliance with the rules of service.

(Continued)
MEMORANDUM DECISION AND ORDER - 6

Defendants on this point. Mendoza-Jimenes failed to properly serve each of the
Bonneville County Defendants in their individual capacities.3
The Court must next determine whether this service was proper as to the
Bonneville County Defendants in their various official capacities. The Court likewise
finds that it was not. Under Idaho Code section 6-906, the authorized agent of a political
subdivision (such as Bonneville County) and employees of those subdivisions (such as
the individual Defendants sued in their professional capacities) is the county clerk or
secretary.4 A secretary in the Bonneville County Prosecutor’s Office is not the authorized
agent for any of the Bonneville County Defendants. The Court, therefore, finds in favor
of the Bonneville County Defendants on this point as well. Mendoza-Jimenes failed to
properly serve each of them in their professional capacities. The question then is whether
any exception applies under the circumstances.
Mendoza-Jimenes presents numerous arguments against a strict reading of the
rules and asserts that she complied with the spirit and purpose of Rule 4. MendozaJimenes points out that the Ninth Circuit has held that Rule 4 is “a flexible rule that
should be liberally construed so long as a party receives sufficient notice of the

3

Or at least those who have individual capacities. The Court discusses service in both the
individual and professional capacity as to the Bonneville County Defendants as a whole, even
though some do not have an “individual capacity” as they are public entities.
4

See also Declaration of Penny Manning, Dkt. 4-5. Manning is the Clerk for Bonneville County
and as such acts as the authorized agent for the County, its subdivisions, and any County
employee sued in his or her official capacity. Manning declares that she never received a copy of
the Summons and Complaint in this matter.
MEMORANDUM DECISION AND ORDER - 7

complaint.” Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d
685, 688 (9th Cir. 1988) (internal quotation omitted). While this is true, the Ninth Circuit
has held that, for this sufficient notice exception to apply, there must be a “justifiable
excuse” for the defect. See Daly-Murphy v. Winston, 837 F.2d 348, 355 n. 4. (9th Cir.
1987). Here, none of Mendoza-Jimenes’s “excuses” were justified.
First, Mendoza-Jimenes postures that “even if Plaintiff’s service was technically
defective because she failed to personally serve the individual defendants in accordance
with Rule 4(e) or failed to deliver process to the appropriate agent of the corporate
defendants in accordance with Rule 4(h), it is undisputed that all Defendants received
actual notice of the suit.” Dkt. 13, at 4. Mendoza-Jimenes claims that this is evident based
upon attachments filed by the Bonneville County Defendants and the filing of the instant
motion.
The first “evidence” in support of this theory are affidavits submitted by the
various Defendants in conjunction with the Motion to Dismiss. Dkts. 4-2—4-5. Each
affiant states unequivocally that Mendoza-Jimenes never served them. One Defendant
indicates that at some point he became aware that a copy of the Summons and Complaint
had been left with a secretary at the Prosecutor’s Office, but nothing more. MendozaJimenes claims that this is actual notice. Setting aside whether anything that took place
should be considered actual notice or not, this still does not address service. MendozaJimenes’s assertion that some (or even all) of the Bonneville County Defendants knew
about the lawsuit is of little relevance as it is well settled that “neither actual notice, nor
simply naming the person in the caption of the complaint, will subject defendants to
MEMORANDUM DECISION AND ORDER - 8

personal jurisdiction if service was not made in substantial compliance with Rule 4.”
Jackson, 682 F.2d at 1347 (emphasis added). As to Mendoza-Jimenes’s second theory—
that the instant motion evidences notice—it is important to remember that an initial
appearance, the filing of a motion to dismiss, or any action on an attorney’s part, is not
acquiesces to service simply because the attorney took action. Here, the fact that the
Bonneville County Defendants knew about the suit and filed the Motion to Dismiss does
not take the place of proper service under Rule 4. See id.
Second, Mendoza-Jimenes points to her counsel’s “collegial and cooperative”
interactions with Daniel Clark, the Bonneville County Prosecuting Attorney, and their
communications regarding this lawsuit. As just outlined, being aware of a suit does not
replace the requirements of service. Additionally, Clark is not the authorized agent for
any of the Bonneville County Defendants; so, while communications between MendozaJimenes’s counsel and Clark may have been ongoing, he did not have the authority to
accept service or act on behalf of the Bonneville County Defendants.
Next, Mendoza-Jimenes cites a recent case from the District of Idaho in which
Chief Judge Winmill weighed strict compliance with Rule 4 against a “fair, reasonable,
and just” standard. Kinney v. Erikson, No. 4:11-CV-00471-BLW, 2012 WL 1288805, at
*4 (D. Idaho Apr. 16, 2012). In that case, Judge Winmill ultimately allowed the
plaintiff’s case to proceed even though she had not strictly complied with Rule 4. Id.
Importantly, Kinney involved a pro se plaintiff; not someone represented by counsel, such
as Mendoza-Jimenes. Judge Winmill’s reasoning in Kinney conforms with Ninth Circuit
precedence on this matter. See Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984)
MEMORANDUM DECISION AND ORDER - 9

(finding that a pro se litigant who had been given incorrect information regarding service
from the district court had a justifiable excuse for failing to comply with the strict
requirements of Rule 4); Direct Mail Specialists, Inc., 840 F.2d at 688 (finding that it was
“fair” to apply the exception when service was effected upon the secretary of a small
company because she was the sole person in the office and the service was communicated
to management that same day and/or the day following).
It is important to note that in subsequent decisions Judge Winmill has made clear
that fairness does not override strict compliance except in limited circumstances and that
“a liberal and flexible interpretation of Rule 4 [would] have precisely the opposite effect,
encouraging countless disputes over whether a defendant had actual notice and whether it
would be ‘fair’ to treat a deficient method of service as valid.” Staples v. Outsource
Receivables Mgmt., No. 4:12-CV-00014-BLW, 2013 WL 12137841, at *3 (D. Idaho July
24, 2013). For these reasons, Judge Winmill concluded “that the approach suggested by
the Circuit in Direct Mail Specialists, should rarely, if ever, be used by a trial court.” Id.
Similarly, the Ninth Circuit has been more strict with the requirements of Rule 4
when a plaintiff is represented by counsel, see Hart v. United States, 817 F.2d 78, 81 (9th
Cir. 1987), and has routinely held that inadvertence or error on the part of counsel “does
not qualify as good cause,” see Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985).
Finally, Mendoza-Jimenes argues that the Bonneville County Prosecuting
Attorney’s Office secretary was “unquestionably an agent authorized under these
circumstances.” Dkt 13, at 5. Mendoza-Jimenes provides no support for such a
proposition. Assuming arguendo that this theory is based upon a broad reading of Rule
MEMORANDUM DECISION AND ORDER - 10

4(h) and the language in Direct Mail Specialists that “service can be made upon a
representative so integrated with the organization that he will know what to do with the
papers,” 840 F.2d at 688, such an argument would not change the Court’s analysis. The
Court just addressed—and rejected—the fairness over strictness argument because
Mendoza-Jimenes is represented by counsel, and there is no indication that this secretary
was “so integrated with the organization” that she would qualify as an agent or
representative for any of the Bonneville County Defendants (individually or collectively).
The Court rejects this final argument.
V. CONCLUSION
Mendoza-Jimenes admits that “best practice[s] would have included an attempt to
gain a waiver of service.” Dkt. 13, at 5. Mendoza-Jimenes knew what should have been
done, but instead relied upon informal communications and a casual approach to the rules
of service. None of Mendoza-Jimenes’s reasons for her failure to properly serve the
Bonneville County Defendants rise to the level of a justifiable excuse. A strict reading of
Rule 4 is, therefore, appropriate in this case.
Mendoza-Jimenes failed to properly serve the Bonneville County Defendants in
the individual capacities as none were personally served (or in Winchester’s case, he was
served, but not timely).
Additionally, Mendoza-Jimenes failed to properly serve the Bonneville County
Defendants in the official capacities as none were personally served or served via an
authorized agent. Leaving a copy of the Summons and Complaint with a secretary at the

MEMORANDUM DECISION AND ORDER - 11

Bonneville County Prosecutor’s Office was insufficient and does not comply with the
requirements of Rule 4.
VI. ORDER
IT IS ORDERED:
1.

The Bonneville County Defendants’ Motion to Dismiss (Dkt. 4) is hereby
GRANTED. Defendants Bonneville County, Bonneville County
Prosecuting Attorney’s Office, Daniel R. Clark, Michael F. Winchester,
Bonneville County Sheriff’s Office, Paul J. Wilde, and Korey Edward
Payne are dismissed, with prejudice,5 from this case.

DATED: August 7, 2018
_________________________
David C. Nye
U.S. District Court Judge

5

The Bonneville County Defendants are dismissed with prejudice because Mendoza-Jimenes
cannot cure her insufficient service as the deadline has passed.
MEMORANDUM DECISION AND ORDER - 12