Walton v. Bilinski et al

Filing 37

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendant's fourth motion to dismiss [#34] is DENIED. IT IS FURTHER ORDERED that service is deemed effected on April 15, 2016. Defendant must file his answer or other responsive pleading within tw enty (20) days of the date of this order. IT IS FINALLY ORDERED that defendants motion to strike [#34] is GRANTED as to paragraphs 3, 4, 19, and 20, and DENIED as to paragraphs 5, 22, 23, 24, and 28. Signed by District Judge Catherine D. Perry on July 6, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
CODY WALTON,

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Plaintiff,
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vs.
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RYSZARD BILINSKI, former MACON )
COUNTY DEPUTY SHERIFF in his
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individual capacity only,
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Defendant.
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Case No. 2:15 CV 36 CDP

MEMORANDUM AND ORDER
In my order dated December 30th, 2015, I found that plaintiff Cody Walton
had not yet properly served defendant Ryszard Bilinski, despite several attempts,
and granted him an additional 120 days in order to attempt service. On April 21,
2016, Walton filed a summons returned executed with this court. Defendant then
filed a fourth motion to dismiss the case on the basis of insufficient service, and to
strike certain immaterial portions of the complaint.
Service of Process
As set out in more detail in my December 30 order, Bilinski is currently a
resident of Alberta, Canada and therefore service must be made under the
provisions of the Hague Convention. I conclude that Walton has now properly
served Bilinski, and so I will deny the motion to dismiss for insufficient service.

In his latest attempt at service, Plaintiff engaged a process server – known as
a bailiff - through a Civil Enforcement Agency in Alberta. The bailiff attempted to
personally deliver the documents to Bilinski’s home four separate times over the
course of one month, but received no response at the door. On April 14, 2016, the
bailiff then sent the documents by registered mail. Bilinski signed for and received
the documents on April 15, 2016.1
Defendant now argues that, like the previous attempts, service of process
was insufficient and should be quashed, and this case should be dismissed.
Defendant relies on Bankston v. Toyota Motor Corp., 889 F.2d 172, 173 (8th Cir.
1989) for the proposition that service by registered mail to someone in a foreign
country can never be considered effective service under the Hague Convention.
But Bankston and cases following it merely hold that service is not authorized by
registered mail under Article 10(a) of the Hague Convention; they say nothing of
Article 10(b). While Article 10(a) governs the ability to send judicial documents
directly to potential defendants abroad, Article 10(b) specifically requires service
to be made through a representative of the destination country.
Here, Walton used a bailiff from a civil enforcement agency to carry out
service. A bailiff is appointed by the sheriff, and defined as a peace officer when
carrying out civil enforcement duties. Defendant has not contested the bailiff’s
1

Bilinski’s signature is not actually visible in the exhibit filed with the court, but Defendant
apparently does not dispute that he signed for the registered mail.

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qualifications as a “judicial officer, official, or other competent person of the State
of destination,” and I find no reason to believe he is not qualified.
As explained more fully in my earlier order, in this case we must look to the
Alberta Rules of Court for the internal rules of service to determine whether
Alberta would object to the particular method of service used under Article 10.
Alberta’s Rule 11.5 allows for service by “recorded mail addressed to the
individual.” It further provides that service will be deemed effected “on the date
acknowledgement of receipt is signed by the individual to whom it is addressed.”
Unlike the previous attempts at service, this service by a representative of the
destination country is sufficient.
I find the plaintiff has now complied with the service requirements of the
Hague Convention and Fed. R. Civ. P. 4(f), and so I will deny the fourth motion to
dismiss.
Motion to Strike
Bilinski also moves to strike certain allegations from the complaint as
irrelevant, including paragraphs 3, 4, 5, 19, 20, 22, 23, 24, 28. Walton has not
responded to this motion. I will grant the motion in respect to the allegations
involving Robert Dawson and David Moore (paragraphs 3 and 4) because they are
not named as defendants in this lawsuit. I will also grant the motion as to

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paragraphs 19 and 20 because I find this information irrelevant to plaintiff’s case.
In all other respects this motion is denied.
Accordingly,
IT IS HEREBY ORDERED that defendant’s fourth motion to
dismiss [#34] is DENIED.
IT IS FURTHER ORDERED that service is deemed effected on
April 15, 2016. Defendant must file his answer or other responsive pleading
within twenty (20) days of the date of this order.
IT IS FINALLY ORDERED that defendant’s motion to strike [#34]
is GRANTED as to paragraphs 3, 4, 19, and 20, and DENIED as to
paragraphs 5, 22, 23, 24, and 28.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 6th day of July, 2016.

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