Stadtler v. Hendrick Chevrolet Shawnee Mission, et al

Filing 18

MEMORANDUM AND ORDER denying 7 Motion to Quash Service and Dismiss Complaint. Signed by Chief District Judge Julie A Robinson on 10/19/17. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FREDERICK STADTLER,
Plaintiff,
Case No. 17-2077-JAR-GLR

v.
HENDRICK CHEVEROLET SHAWNEE
MISSION aka HENDRICK MOTORS, and
HENDRICK AUTOMOTIVE GROUP,
Defendants.

MEMORANDUM AND ORDER
Plaintiff Frederick Stadtler alleges he was injured while inspecting a vehicle at Defendant
Hendrick Chevrolet Shawnee Mission, aka Hendrick Motors, and filed this lawsuit against the
car dealership and Hendrick Automotive Group (“HAG”). This matter is before the Court on
Defendant HAG’s Motion to Quash Service and Dismiss Plaintiff’s Complaint (Doc. 7). For the
reasons explained in detail below, Defendant’s motion is denied.1
I.

Legal Standard
Fed. R. Civ. P. 4 governs service of process in federal actions.2 The personal service

requirements of this rule “serve[ ] two purposes: notifying a defendant of the commencement of
an action against him and providing a ritual that marks the court’s assertion of jurisdiction over
the lawsuit.”3 “Rule 4 service of process provides the mechanism by which a court having venue

1

The Court finds that Plaintiff’s response to the Order to Show Cause (Doc. 17) relative to Hendrick
Chevrolet Shawnee Mission is sufficient to avoid dismissal.
2

Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987).

3

Okla. Radio Assocs. v. F.D.I.C., 969 F.2d 940, 943 (10th Cir. 1992) (citations omitted).

1

and jurisdiction over the subject matter of an action asserts jurisdiction over the person of the
party served.”4
“A federal court lacks personal jurisdiction over a defendant if service of process is
insufficient under Rule 4.”5 Motions to dismiss under Rule 12(b)(2) and 12(b)(5) thus go hand
in hand. A Rule 12(b)(5) motion to dismiss based on insufficient service of process “challenges
the mode or lack of delivery of a summons and complaint.”6 When a defendant moves to
dismiss based on insufficient service of process under Rule 12(b)(5), the burden shifts to the
plaintiff to make a prima facie showing that he served process properly.7 When considering
whether service was sufficient, a court may consider any “affidavits and other documentary
evidence” submitted by the parties and must resolve any “factual doubt” in a plaintiff’s favor.8
II.

Facts
HAG is a general partnership registered in Kansas. The Kansas Secretary of State does

not list a registered agent or a registered office for HAG, whose mailing address is listed as 6000
Monroe Road, Charlotte, North Carolina. On February 22, 2017, HAG was served by certified
mail by mailing a copy of the Summons and Complaint to 6000 Monroe Road, Charlotte, North
Carolina.9
HAG’s website identifies Hendrick Chevrolet Shawnee Mission at 8300 Shawnee
Mission Parkway, Merriam, Kansas, as one of its locations. Hendrick Chevrolet Shawnee

4

Id. (citing Omni Capital Int’l, 484 U.S. at 104).

5

Hagan v. Credit Union of Am., No. 11-1131-JTM, 2011 WL 6739595, at *1 (D. Kan. Dec. 22, 2011)
(citation omitted).
6

Oltremari by McDaniel v. Kan. Soc. & Rehab. Serv., 871 F. Supp. 1331, 1349 (D. Kan. 1994) (citations
and internal quotation marks omitted).
7

Fisher v. Lynch, 531 F. Supp. 2d 1253, 1260 (D. Kan. 2008) (citation omitted).

8

Id. (citation omitted).

9

Doc. 4.

2

Mission’s website states that it is a member of HAG. On February 20, 2017, a Summons and
Complaint was served on Hendrick Chevrolet Shawnee Mission by physical delivery to the
location, where it was left with Adam Williams, Executive General Manager of Hendrick
Chevrolet Shawnee Mission.10
III.

Discussion
HAG contends that Plaintiff has not obtained sufficient service of process, because 1)

Hendrick Chevrolet Shawnee Mission is a non-existent entity that cannot be sued; and 2)
Plaintiff did not serve an officer, partner, or agent of HAG.
HAG first contends that Hendrick Chevrolet Shawnee Mission does not exist as an entity
and thus cannot be sued. Although objecting on Hendrick Chevrolet’s behalf, HAG stops short
of identifying the relationship between the two defendants. Instead, HAG generally denies that
Hendrick Chevrolet is an unicorporated association and asserts that since HAG identifies
Hendrick Chevrolet as one of its locations, and Hendrick Chevrolet indicates on its website that
it is a proud member of HAG, Plaintiff was able to “easily identify a corporate relationship.”
HAG goes on to explain that the Kansas Secretary of State does not list or register DBAs or
fictitious names of general partnerships. Accordingly, it appears that HAG is doing business in
Kansas as Hendrick Chevrolet Shawnee Mission. If this is the case, HAG is correct that
Hendrick Chevrolet is not an entity capable of being sued. Dismissal under Rule 12(b)(5),
however, which permits dismissal for faulty service, is not the proper avenue for relief on this
basis. Instead, HAG should file a motion for failure to assert a claim upon which relief can be
granted under Rule 12(b)(6), after identifying the nature of the relationship between the parties.

10

Doc. 5.

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Next, HAG argues that Plaintiff failed to comply with Rule 4(h) with respect to serving
general partnerships. Rule 4(h) states that in the absence of a waiver, a partnership “must be
served” either “in the manner prescribed by [Fed. R. Civ. P.] 4(e)(1) for serving an individual” or
“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.”11
Rule 4(e)(1) states an individual may be served 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.”12 The relevant state law in this case is K.S.A. 60-304(e), which
allows for service of process on a partnership or other unincorporated association that is subject
to suit in a common name, by 1) serving an officer, manager, partner or resident, managing or
general agent; 2) leaving a copy of the summons and petition at any of its business offices with
the person in charge; or 3) serving an authorized agent, and if the agent is so authorized by
statute, by also mailing a copy to the defendant.13 “Service by return receipt delivery on an
officer, partner, or agent must be addressed to the person at the person’s usual place of
business.”14
Plaintiff contends that he has substantially complied with Kansas law regarding service of
process. K.S.A. § 60-204 states that “in any method of serving process, substantial compliance
therewith shall effect valid service of process if the court finds that, notwithstanding some
irregularity or omission, the party served was made aware that an action or proceeding was
pending in a specified court.” In interpreting “substantial compliance,” the Kansas Supreme

11

Fed. R. Civ. P. 4(h)(1)(B).

12

Fed. R. Civ. P. 4(e)(1).

13

K.S.A. § 60-304(e)

14

Id.

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Court has held that “[b]efore there can be a valid personal service of process there must be a
substantial compliance with some method of service. Irregularities or omissions will then be
ignored if the court finds that the party to be served was made aware that an action or proceeding
was pending.”15 Thus, the fact that HAG is aware of this lawsuit is not enough to show
substantial compliance; Plaintiff must first show that he has substantially complied with some
statutory method of service.
Here, Plaintiff served Adam Williams, Executive General Manager of Hendrick
Chevrolet Shawnee Mission, by physically leaving a copy of the Summons and Complaint with
him at the Hendrick Chevrolet in Merriam, Kansas. It also sent a copy of the Summons and
Complaint by certified mail to HAG’s mailing address in Charlotte, North Carolina. HAG is
correct that the certified mail was not addressed to any officer, partner or agent of HAG.
Because Hendrick Chevrolet Shawnee Mission is listed as one of HAG’s “locations,” however,
serving a manager at Hendrick Chevrolet’s place of business suffices as substantial compliance
with the statutory requirements for service of process.16 Accordingly, the Court denies HAG’s
motion to quash service and dismiss pursuant to Rule 4 and Rule 12(b)(5).
IT IS THEREFORE ORDERED BY THE COURT that Defendant Hendrick
Automotive Group’s Motion to Quash Service and Dismiss Plaintiff’s Complaint (Doc. 7) is
denied.
IT IS SO ORDERED.
Dated: October 19, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

15

Briscoe v. Getto, 462 P.2d 127, 129 (Kan. 1969).

16

K.S.A. § 60-204(e)(2).

5