Radiance Capital Receivables Eighteen, LLC et al v. MBO Investments, LLC et al

Filing 19

ORDER: IT IS HEREBY ORDERED that the Motion to Dismiss for Insufficient Service or Process, or, in the Alternative, Motion to Quash Service filed by Defendants Marc A. Owen, Jacqueline Owen, and MBO Investments, LLC 14 is GRANTED IN PART and DENIED IN PART. With respect to the motion to dismiss, the motion is DENIED. With respect to the motion to quash service, the motion is GRANTED. IT IS FURTHER ORDERED that the Motion to Dismiss for Insufficient Service or Process, or, in the A lternative, Motion to Quash Service filed by Defendants Bryan K. Owen and Mary Beth Owen 16 is GRANTED IN PART and DENIED IN PART. With respect to the motion to dismiss, the motion is DENIED. With respect to the motion to quash service, the motio n is GRANTED. IT IS FURTHER ORDERED that Plaintiff shall effect proper service or obtain a waiver of service no later than March 9, 2017, which is 90 days from the filing of the original complaint. Signed by Magistrate Judge Shirley Padmore Mensah on 2/2/17. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

RADIANCE CAPITAL RECEIVABLES
EIGHTEEN, LLC,
Plaintiff,
v.
MBO INVESTMENTS, LLC, et al.,
Defendants.

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Case No. 4:16-CV-01921-SPM

ORDER
This matter is before the Court on the Motions to Dismiss for Insufficient Service or
Process, or, in the Alternative, Motion to Quash Service, filed by Defendants. (Docs. 14 & 16).
Plaintiff Radiance Capital Receivables Eighteen, LLC (“Plaintiff”) has filed a response. (Doc.
18).
On December 9, 2016, Plaintiff filed its Complaint in this action. On December 21, 2016,
Plaintiff served individual copies of the summons on defendants Bryan Owen and Mary Beth
Owen. On December 28, 2016, Radiance served individual copies of the summons on defendants
Marc Owen, Jacqueline Owen, and MBO Investments, LLC. No copies of the Complaint were
attached to the summonses. On January 5, 2017, Plaintiff filed documents with the Court
purporting to reflect service on each of the defendants.
Rule 12(b)(5) of the Federal Rules of Civil Procedure authorizes a defendant to bring a
motion to dismiss on grounds of insufficiency of service of process. Advanced Lipodissolve
Centers, LLC v. Karkkainen, No. 4:06-CV-199 CAS, 2006 WL 3803764, at *2 (E.D. Mo. Nov.
6, 2006). Where attempted service is ineffective, a district court “has discretion to either dismiss

the action, or quash service but retain the case.” Marshall v. Warwick, 155 F.3d 1027, 1032 (8th
Cir. 1998) (quoting Haley v. Simmons, 529 F.2d 78, 78 (8th Cir. 1976) (per curiam)) (internal
quotations omitted).
Under Rule 4(c)(1), “A summons must be served with a copy of the complaint.” It is
undisputed that no copies of the Complaint were attached to the summonses served on
Defendants. Therefore, the attempted service was ineffective. See Duran v. Andrew, No.
4:08CV1400, 2009 WL 113382, at *3-*4 (E.D. Mo. Jan. 15, 2009) (finding service of process
insufficient where the plaintiff had been served with a summons but not with a copy of the
complaint). In its response, Plaintiff argues that the Court should “liberally construe” the
requirements of Rule 4 because Defendants had actual notice of an action against them.
However, Plaintiff does not direct the Court to any cases permitting the Court to set aside the
clear requirement in Rule 4(c)(1) that the summons must be served with a copy of the Complaint.
Under Rule 4(m), Plaintiff still has until March 9, 2017 to effect service on Defendants.
In light of the fact that Plaintiff still has time to obtain service, the Court finds that the
appropriate cause of action here is to quash service and retain the case. Cf. Duran, 2009 WL
113382, at *4 (finding that where the time for service had only recently expired, the Court would
exercise its discretion to quash service and retain the case, rather than dismiss it). Plaintiff must
effect proper service or obtain a waiver of service within the time set forth in Rule 4(m). 1 Failure
to do so may result in a dismissal of this case.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Dismiss for Insufficient Service or
Process, or, in the Alternative, Motion to Quash Service filed by Defendants Marc A. Owen,
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In its response, Plaintiff states that it has requested a waiver of service pursuant to Rule 4(d)
and is awaiting Defendants’ response to the request.

Jacqueline Owen, and MBO Investments, LLC (Doc. 14) is GRANTED IN PART and
DENIED IN PART. With respect to the motion to dismiss, the motion is DENIED. With
respect to the motion to quash service, the motion is GRANTED.
IT IS FURTHER ORDERED that the Motion to Dismiss for Insufficient Service or
Process, or, in the Alternative, Motion to Quash Service filed by Defendants Bryan K. Owen and
Mary Beth Owen (Doc. 16) is GRANTED IN PART and DENIED IN PART. With respect to
the motion to dismiss, the motion is DENIED. With respect to the motion to quash service, the
motion is GRANTED.
IT IS FURTHER ORDERED that Plaintiff shall effect proper service or obtain a
waiver of service no later than March 9, 2017, which is 90 days from the filing of the original
complaint

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 2nd day of February, 2017.