Chambers v. Pike et al

Filing 24

MEMORANDUM AND ORDER denying 15 Defendant's Motion to Dismiss Party. Plaintiff is granted time until 6/9/14 to effect service of process upon defendant Fike. Signed by District Judge Richard D. Rogers on 5/7/14. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JEFFREY D. CHAMBERS,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
TIMOTHY A. FIKE, CRETE
CARRIER CORP.
Defendants.

Case No. 13-1410-RDR

MEMORANDUM AND ORDER
This is a personal injury action filed in state court and
removed to this court on the basis of diversity jurisdiction.
This

matter

Fike’s

is

motion

Doc. No. 15.

now
to

before

dismiss

the

court

pursuant

to

upon

defendant

FED.R.CIV.P.

was

12(b)(5).

Fike contends that he should be dismissed because

he has not been properly served with process.
process

Timothy

insufficient,

jurisdiction over Fike.

then

the

court

If service of
lacks

personal

Blackmon v. U.S.D. 259 Sch. Dist., 769

F.Supp.2d 1267, 1273 (D.Kan. 2011).
I.

FACTUAL BACKGROUND
This case arises from a motor vehicle accident on October

31, 2011 in which, according to the amended complaint, defendant
Fike

was

Corporation.

driving

a

truck

for

defendant

Crete

Carrier

Plaintiff filed this action in state court on

September 5, 2013, misnaming Timothy “Pike” as a defendant.

A

notice of service was filed on November 7, 2013.

Doc. No. 5.

It states that “Timothy Pike was served by leaving a copy at
Defendant’s last known residence 3965 AI 77 Hwy, Ohatchee, AL
36271, on October 30, 2013, and a copy was sent by first class
mail addressed to Timothy Pike at [the same address] on October
31, 2013.”

This case was removed to federal court on October

31, 2013.
An

amended

complaint

was

filed

correcting defendant Fike’s name.

on

November

8,

2013

According to the return of

summons filed December 5, 2013 (Doc. No. 8), defendant Fike was
served by “tacking at 3965 AL 77 Hwy, Ohatchee, AL 36271 and
mailing a copy to the Defendant’s last known address of 3965 AL
77 Hwy, Ohatchee, AL 36271.”
has

been

filed

in

support

An affidavit from Crystal Bates
of

the

motion

to

dismiss.

The

affidavit states that Crystal Bates has lived at 3965 AL 77 Hwy,
Ohatchee, AL 36271 with her family at least since October 1,
2013 and that she has never met defendant Fike and that he has
not lived at that address while Bates has lived there.

Bates

further states in the affidavit that she told this to a process
server in the fall of 2013, but he left the paperwork with her
anyway.
Defendant Fike filed an answer on December 16, 2013.

Doc.

No.9. Among other defenses, defendant Fike asserted insufficient
service of process.
2

II. PLAINTIFF HAS
DEFENDANT FIKE.
Defendant

FAILED

Fike

TO

contends

EFFECT

in

SERVICE

OF

PROCESS

UPON

motion

to

dismiss

that

the

plaintiff’s attempts to serve him fail to comply with federal
and

state

plaintiff
properly

law.
to

Defendant’s

make

served

a

with

prima

motion

facie

places

showing

process.

See

the

that

Fisher

burden

upon

defendant

was

v.

Lynch,

531

F.Supp.2d 1253, 259 (D.Kan. 2008).
Plaintiff has responded to the motion to dismiss, first, by
contending

that

plaintiff

complied

with

service found in K.S.A. 60-303(d)(1)(C).

the

Kansas

rules

of

This statute provides:

If personal or residence service cannot be made on an
individual, other than a minor or a disabled person,
service is effected by leaving a copy of the process
and petition or other document at the individual’s
dwelling or usual place of abode and mailing to the
individual by first-class mail, postage prepaid, a
notice that the copy has been left at the individual’s
dwelling or usual place of abode.
K.S.A. 60-308 provides that service of process may be made on
any party outside of Kansas in the same manner as service within
Kansas.

Those

methods

are

set

forth

in

K.S.A.

60-303.

Plaintiff asserts that compliance was achieved because plaintiff
twice left a summons and the complaint at Fike’s “last known
place of dwelling or abode, according to public record” which
was “2965 AL 77 Hwy, Ohatchee, AL

1

36271.”1 Doc. No. 19 at p. 4.

The court assumes that “2965” is a typographical error because the notice of
summons in the record indicates that summons was left at “3965” AL 77 Hwy,
Ohatchee, AL 36271.

3

Plaintiff further notes that the address plaintiff used to serve
process upon Fike was the address listed in an accident report
and

that

the

documents

mailed

to

that

address

were

never

returned as undeliverable, noting an incorrect address, or with
a forwarding address.
It is undisputed that if plaintiff complied with Kansas law
as

to

service

of

process,

then

plaintiff

complied

with

the

requirements of FED.R.CIV.P. 4(e)(1) which incorporates state
rules for service for the state where the district court is
located or where service is made.
If the court finds that service was improper under Kansas
and federal law, plaintiff asks that he be allowed to amend the
complaint to include Fike’s proper identity and location and
that the court extend the time for service under the provisions
of FED.R.CIV.P. 4(m).
In reply, defendant insists that service of process was
improper under Kansas law because K.S.A. 60-303 does not permit
service upon an individual at his or her “last known” dwelling
or abode.

Defendant, however, does not respond to plaintiff’s

request that the court extend the time for service under the
provisions of Rule 4(m).
The

court

agrees

with

process was insufficient.

defendant

Fike

that

service

of

Plaintiff has not made a prima facie

showing that he served process at Fike’s dwelling or usual place
4

of abode.

At best, plaintiff has made a prima facie showing

that he served process at Fike’s former dwelling or usual place
of abode.
303.

Such service does not satisfy the requirements of 60-

See Amsbaugh v. Exchange Bank, 5 P. 384, 386-87 (Kan.

1885)(service

of

a

notice

at

a

person’s

former

place

of

residence, after he has removed therefrom, is not service at his
“usual place of residence”); see also, Rosa v. Cantrell, 705
F.2d 1208, 1213-147 (10th Cir. 1982)(service was proven at “usual
place of abode” because defendant failed to prove it was his
former place of abode).
III. PLAINTIFF WILL BE GRANTED A PERMISSIVE EXTENSION OF TIME TO
EFFECT SERVICE OF PROCESS UPON DEFENDANT FIKE.
Federal law requires that in cases removed from state court
“in which any one or more of the defendants has not been served
with process or in which the service has not been perfected
prior

to

removal,

defective,

such

or

in

process

which
or

process

service

may

served
be

proves

completed

to
or

be
new

process issued in the same manner as in cases originally filed
in such district court.”

28 U.S.C. § 1448.

Rule 4(m) of the

Federal Rules of Civil Procedure provides that service must be
accomplished within 120 days after the complaint is filed, or:
“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

5

time. But if the plaintiff shows good cause for the failure, the
court

must

extend

the

time

for

service

for

an

appropriate

period.”
For cases which are removed to federal court, the 120-day
period begins once the case is removed.

Wallace v. Microsoft

Corp., 596 F.3d 703, 706 (10th Cir. 2010).
analysis

for

dismissal

pursuant

to

There is a two-step

Rule

4(m).

Espinoza

United States, 52 F.3d 838, 840-41 (10th Cir. 1995).
cause

is

shown,

the

plaintiff

is

entitled

to

v.

“If good

a

mandatory

extension of time.

If the plaintiff fails to show good cause,

the

must

district

court

still

consider

whether

a

permissive

extension of time may be warranted.” Id.
Plaintiff has failed to show good cause for an extension of
time.
that

From the accident report, plaintiff had reason to believe
defendant

Fike

lived

at

the

3965

address

in

2011.

Plaintiff also alleges that he did an “Accurint” search which
listed Fike’s address as “2965 AL 77 Hwy, Ohatchee, AL
Doc. No. 19, p. 1.

36271.”

Without further explanation or elaboration

from plaintiff, the court must find that he has not demonstrated
good cause for the defective service.

Another judge of this

court has stated:
“The ‘good cause’ provision of [Rule 4(m)] should
be read narrowly to protect only those plaintiffs who
have been meticulous in their efforts to comply with
the Rule.” Despain v. Salt Lake Area Metro Gang Unit,
13 F.3d 1436, 1438 (10th Cir. 1994); see also In re
6

Kirkland, 86 F.3d 172, 174 (10th Cir. 1996)(Tenth
Circuit has interpreted “good cause” narrowly).
This
“good cause” standard requires a showing greater than
“excusable neglect”.
See Kirkland, 86 F.3d at 175.
Simple inadvertence or ignorance of the rules does not
suffice.
See id. at 174; Cox v. Sandia Corp., 941
F.2d 1124, 1125 (10th Cir. 1991); Putnam v. Morris, 833
F.2d 903, 904 (10th Cir. 1987).”
Arey

v.

Progressive

Halcyon

(D.Kan. 4/3/2007).

Ins.

Corp.,

2007

WL

1018798

*2

Plaintiff does not cite a factor beyond

plaintiff’s control which prevented proper service of process.
After defendant’s answer alleged insufficient service, plaintiff
had notice that there may have been a problem with his attempts
at

service

and

defective.
relied

had

time

to

investigate

whether

service

was

It does not appear that plaintiff did so and merely

upon

the

fact

that

the

service

returned to plaintiff as undeliverable.
meticulous

efforts

to

comply

with

documents

were

not

Plaintiff has not shown

the

rules

of

service

or

factors beyond his control which have made service difficult or
impossible.

Therefore, the court shall find that good cause

does not exist to extend the time for service of process.
Next, the court must consider whether to grant plaintiff a
permissive extension of time to make proper service even though
plaintiff
permissive

has

not

shown

extension

is

good

cause.

appropriate

Here,
because

we

believe

there

is

a
no

indication that defendant Fike has been prejudiced by the delay
or

that

the

proceedings

in

this

7

case

have

been

seriously

disrupted.

In addition, plaintiff appears to have acted in good

faith and it further appears that the statute of limitations
would

bar

any

dismissed.

refiled

Under

action

these

against

conditions,

Fike
we

if

this

believe

a

case

was

permissive

extension of time to effect service of process on defendant Fike
on or before June 9, 2014 is appropriate.
district

have

circumstances.
98

(D.Kan.

granted

such

extensions

Other cases from this

under

somewhat

similar

See Spiess v. Meyers, 483 F.Supp.2d 1082, 1097-

2007);

Brown

v.

Baeke,

2005

WL

309940

(D.Kan.

2/2/2005); Waddy v. Unified Government of Wyandotte County, 2002
WL 31527858 (D.Kan. 11/5/2002).
IV.

CONCLUSION
In conclusion, for the above-stated reasons, the motion to

dismiss (Doc. No. 15) is denied and plaintiff is granted time
until June 9, 2014 to effect service of process upon defendant
Fike.
IT IS SO ORDERED.
Dated this 7th day of May, 2014, at Topeka, Kansas.

s/RICHARD D. ROGERS
Richard D. Rogers
United States District Judge

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