Brandle v. Healthsouth Rehabilitation Hospital et al
Filing
32
ORDER Granting 19 Motion to Dismiss Pursuant to Rule 4(m) without prejudice. THE COURT FURTHER ORDERS 10 Joinder to 6 Motion to Dismiss is GRANTED. THE COURT FURTHER ORDERS 6 Defendants' Motion to Dismiss or to Quash service pursuant to Rule 12(b)(5) or Rule 12(b)(6) is DENIED as moot. Signed by Judge Lloyd D. George on 3/1/2013. (Copies have been distributed pursuant to the NEF - DXS)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
DISTRICT OF NEVADA
9
10
BRIAN B. BRANDLE,
11
Plaintiff,
12
v.
13
Case No. 2:12-cv-01597-LDG (GWF)
ORDER
HEALTHSOUTH REHAB HOSPITAL,
et al.,
14
Defendants.
15
16
17
The plaintiff, Brian Brandle, filed this action on September 11, 2012. On October 2,
18
2012, defendants Healthsouth Rehabilitation Hospital, Sue Loving, and Evangeline Waltrip
19
moved to dismiss or to quash service pursuant to Fed. R. Civ. P. 12(b)(5). (#6). Defendant
20
Monica Byers subsequently joined the motion. (#10). Brandle filed a cursory opposition.
21
(#11). On January 11, 2013, the defendants further moved to dismiss the action without
22
prejudice pursuant to Rule 4(m) for failure to properly serve process within 120 days after
23
the complaint was filed. (#19). Brandle subsequently submitted “proofs of service”
24
indicating that service was accomplished on December 10, 2012. (#21). Brandle then filed
25
an opposition to the motion to dismiss for failure to timely serve. (#24). Having reviewed
26
the motions, the oppositions, and the record as a whole, the Court will dismiss the
1
complaint without prejudice for failure to timely serve process within 120 days after the
2
complaint was filed.
3
Rule 4(m) requires that, if service is not completed within 120 days after the
4
complaint was filed, the Court must dismiss the action without prejudice or order that
5
service be made within a specified time. Accordingly, the threshold issue is whether
6
Brandle properly served any of the defendants within 120 days of the filing of the
7
complaint. As the defendant filed the complaint on September 11, 2012, the 120-day
8
period to duly serve the defendants expired on January 9, 2013.
9
The record reveals that Brandle’s initial attempts to serve process occurred in
10
September and October 2012, shortly after he filed the suit. This information does not
11
come from Brandle, but from the defendants as revealed in their September 2012, motion
12
to quash or dismiss for insufficient service. That motion indicates that, on September 12,
13
2012, Brandle attempted to serve Healthsouth, Loving and Waltrip by personally delivering
14
the summons for each of these defendants to Healthsouth’s Human Resources Assistant.
15
Brandle again attempted to serve Waltrip on September 30, 2012, by delivering a copy of
16
the summons to her while she was at work. Brandle attempted to serve Byers on October
17
2, 2012, by delivering the summons to her secretary, at Byers’ place of employment. As
18
pointed out by the defendants in their first motion to dismiss, these attempts did not come
19
close to substantially complying with Rule 4 for the following reasons: a copy of the
20
complaint was not include in any of the attempted services of process, contrary to Rule
21
4(c)(1); Brandle, a party to this suit, personally attempted to serve process, contrary to Rule
22
4(c)(2); Brandle attempted to serve Healthsouth by delivering a copy of the summons to
23
Healthsouth’s Human Resources Assistant, a person who is not authorized either by law or
24
appointment to receive service of process for Healthsouth, contrary to Rule 4(h)(1)(B);
25
Brandle attempted to serve Loving and Waltrip by delivering a copy of the summons to
26
Healthsouth’s Human Resources Assistant, a person who is not authorized either by law or
2
1
appointment to receive service of process for either of these defendants, contrary to Rule
2
4(e)(2)(C); Brandle attempted to serve on Byers by delivering a copy of the summons to
3
Byer’s secretary, a person who is not authorized either by law or appointment to receive
4
service of process for Byers, contrary to Rule 4(e)(2)(C); and Brandle attempted to serve
5
process on the individual defendants by delivering the summons at their locations of
6
employment, contrary to Rule 4(e)(2)(B).
7
Brandle’s cursory opposition to the defendants’ Rule 12(b)(5) motion did not dispute
8
any of these defects in his attempts to serve the defendants, but rather acknowledged that
9
he lacked the knowledge of the individual defendants’ dwellings or usual places of abode.
10
Brandle has not, himself, submitted any evidence or argument suggesting that he properly
11
served any of the defendants in September or October, 2012. Accordingly, the Court finds
12
that Brandle did not duly serve any of the defendants in September or October, 2012.
13
Shortly after the defendants filed their Rule 4(m) motion to dismiss, Brandle filed
14
proofs of service for each of the four defendants. Each proof of service indicates that the
15
summons was served on December 10, 2012, a date well after the defendants’ prior
16
motion to dismiss pursuant to Rule 12(b)(5), which motion rested upon the numerous
17
defects of Brandle’s earlier attempts to serve the defendants, including the failure to have
18
process served by a person not a party, the failure to include a copy of the complaint with
19
the summons, the failure to serve an agent of the corporate defendant authorized to
20
receive service of process, and the failure to either personally serve the individual
21
defendants or to serve an agent authorized to receive service of process. Stated
22
otherwise, as a result of the defendants’ prior motion, to which Brandle responded, Brandle
23
was well aware that Rule 4 requires that service be accomplished by a person not a party
24
to the suit, that a copy of the complaint be served with the summons, and that, if service
25
was to be accomplished by delivering the summons and complaint to an agent of the
26
3
1
defendant, such agent had to be authorized by appointment or law to receive service of
2
process.
3
A review of the Proofs of Service establishes that Brandle’s purported December 10,
4
2012, service did not duly serve any of the defendants with a summons. In particular, each
5
proof of service is dated January 16, 2013, and is signed by Brandle personally. Further,
6
each proof of service asserts that summons was served on the defendant as a person
7
designated by law to accept service of process on behalf of the law firm that is representing
8
the defendants. Finally, attached to the proofs of service is a handwritten document stating
9
“documentation dropped off to Huntington Calder, Littler Mendelson; which includes the (4)
10
summons,” which document is signed by a James Hogenson.1 In response to Brandle’s
11
filing of these proofs of service, the defendants submitted the affidavits of Huntington
12
(counsel representing the defendants) and Hogensen, who is the Office Services Clerk for
13
the law firm of Littler Mendelson. The affidavits and the response establishes that an
14
individual identifying himself as Brian Brandle personally delivered his “initial disclosures” to
15
Littler Mendelson, and that Hogenson acknowledged the receipt of the initial disclosures.
16
Hogenson, however, was not authorized to accept service of process on behalf of any of
17
the defendants. Likewise, Huntington was not authorized to accept service of process on
18
behalf of any of the defendants. In addition, Huntington’s review of the documents
19
delivered by Brandle indicated that the documents did not include a copy of the complaint.
20
Further, the summons that were included in the documents were altered copies of the
21
summons issued by the clerk of the court on September 11, 2012.
22
In his opposition to the defendants’ Rule 4(m) motion to dismiss, Brandle concedes
23
that he delivered the documents to Littler Mendelson. Though he asserts that Littler
24
Mendelson is the legal representative of the defendants, he offers no evidence that Littler
25
1
26
The document was clearly not written by James Hogenson, but rather is
consistent with the handwriting of Brandle.
4
1
Mendelson (or Hogensen) is authorized by law or appointment to receive service of
2
process on behalf of any of the defendants. Brandle does not dispute that he did not
3
deliver a copy of the complaint, and does not dispute that the sum mons delivered to Littler
4
Mendelson on December 10, 2012, were altered copies of the summons issued by the
5
clerk on September 11, 2012.
6
Brandle’s personal delivery, on December 12, 2012, of altered copies of the
7
summons to an office clerk of Littler Mendelson did not effect proper service of process on
8
any of the defendants. Brandle has not offered any evidence, or argument, that he
9
properly served any of the defendants by January 9, 2013. Accordingly, the Court finds
10
that Brandle did not cause any defendant to be served with the summons and complaint
11
within 120 days after he filed his complaint.
12
The Court’s finding that the defendants were not timely served within 120 days
13
requires that the Court either dismiss the action without prejudice or order that service be
14
made within a specified time. Within weeks after filing this action, and early in the 120-day
15
period to properly serve the defendants, the defendants’ Rule 12(b)(5) motion expressly
16
made Brandle aware of basic and essential requirements established in Rule 4 to properly
17
serve individual and corporate defendants. The Rule 12(b)(5) motion informed Brandle
18
that Rule 4 requires that the service be accomplished by a person not a party to the suit.
19
Despite being so informed, Brandle again attempted service by personally delivering an
20
altered copy of the summons on December 12, 2012. The Rule 12(b)(5) motion informed
21
Brandle that a copy of the complaint must be served with the summons. Despite being so
22
informed, Brandle’s attempted service on December 12, 2012, again omitted to include a
23
copy of the complaint. The Rule 12(b)(5) motion informed Brandle that service on an agent
24
could only be made on “an agent authorized by appointment or by law to receive service of
25
process.” Despite being so informed, the record lacks any evidence that Hogenson (or
26
Littler Mendelson) was authorized by any of the defendants, either by appointment or by
5
1
law, to receive service of process on their behalf. In light of Brandle’s repeated efforts to
2
effect service within the 120-day period by means prohibited by Rule 4, the Court will not
3
provide Brandle with additional time to serve the defendants, but will dismiss this action
4
without prejudice.
5
Therefore, for good cause shown,
6
THE COURT ORDERS that Defendants’ Motion to Dismiss Pursuant to Rule 4(m)
7
8
9
10
(#19) is GRANTED; This matter is DISMISSED without prejudice.
THE COURT FURTHER ORDERS that Defendant Monica Byers’ Joinder to the
Motion to Dismiss (#10) is GRANTED.
THE COURT FURTHER ORDERS that Defendants’ Motion to Dismiss or to Quash
11
Service Pursuant to Rule 12(b)(5), or, in the Alternative, Motion to Dismiss pursuant to Rule
12
12(b)(6) (#6) is DENIED as moot.
13
14
DATED this ______ day of March, 2013.
15
16
Lloyd D. George
United States District Judge
17
18
19
20
21
22
23
24
25
26
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?