Chambers v. Pike et al
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,
TIMOTHY A. FIKE, CRETE
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.
Doc. No. 15.
Fike contends that he should be dismissed because
he has not been properly served with process.
jurisdiction over Fike.
If service of
Blackmon v. U.S.D. 259 Sch. Dist., 769
F.Supp.2d 1267, 1273 (D.Kan. 2011).
This case arises from a motor vehicle accident on October
31, 2011 in which, according to the amended complaint, defendant
Plaintiff filed this action in state court on
September 5, 2013, misnaming Timothy “Pike” as a defendant.
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
This case was removed to federal court on October
correcting defendant Fike’s name.
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.”
An affidavit from Crystal Bates
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.
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
Defendant Fike filed an answer on December 16, 2013.
No.9. Among other defenses, defendant Fike asserted insufficient
service of process.
II. PLAINTIFF HAS
plaintiff’s attempts to serve him fail to comply with federal
F.Supp.2d 1253, 259 (D.Kan. 2008).
Plaintiff has responded to the motion to dismiss, first, by
service found in K.S.A. 60-303(d)(1)(C).
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
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
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.
Plaintiff further notes that the address plaintiff used to serve
process upon Fike was the address listed in an accident report
returned as undeliverable, noting an incorrect address, or with
a forwarding address.
It is undisputed that if plaintiff complied with Kansas law
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
Defendant, however, does not respond to plaintiff’s
request that the court extend the time for service under the
provisions of Rule 4(m).
process was insufficient.
Plaintiff has not made a prima facie
showing that he served process at Fike’s dwelling or usual place
At best, plaintiff has made a prima facie showing
that he served process at Fike’s former dwelling or usual place
Such service does not satisfy the requirements of 60-
See Amsbaugh v. Exchange Bank, 5 P. 384, 386-87 (Kan.
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
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:
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
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).
There is a two-step
United States, 52 F.3d 838, 840-41 (10th Cir. 1995).
extension of time.
If the plaintiff fails to show good cause,
extension of time may be warranted.” Id.
Plaintiff has failed to show good cause for an extension of
From the accident report, plaintiff had reason to believe
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.
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
Kirkland, 86 F.3d 172, 174 (10th Cir. 1996)(Tenth
Circuit has interpreted “good cause” narrowly).
“good cause” standard requires a showing greater than
See Kirkland, 86 F.3d at 175.
Simple inadvertence or ignorance of the rules does not
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).”
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
It does not appear that plaintiff did so and merely
returned to plaintiff as undeliverable.
Plaintiff has not shown
factors beyond his control which have made service difficult or
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
indication that defendant Fike has been prejudiced by the delay
In addition, plaintiff appears to have acted in good
faith and it further appears that the statute of limitations
extension of time to effect service of process on defendant Fike
on or before June 9, 2014 is appropriate.
Other cases from this
See Spiess v. Meyers, 483 F.Supp.2d 1082, 1097-
2/2/2005); Waddy v. Unified Government of Wyandotte County, 2002
WL 31527858 (D.Kan. 11/5/2002).
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
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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