Hardy v. GlobalOptions Services, Inc. et al

Filing 31

ORDER Granting 8 Motion to Dismiss for Insufficient Service of Process. Signed by Magistrate Judge Carl W. Hoffman on 6/12/2013. (Copies have been distributed pursuant to the NEF - SLR)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 PATRICK M. HARDY, ) ) Plaintiff, ) ) vs. ) ) GLOBAL OPTIONS SERVICES, INC., et al., ) ) Defendants. ) __________________________________________) Case No. 2:13-cv-00514-GMN-CWH ORDER 12 This matter was referred to the undersigned Magistrate Judge on Defendant Anthony Saros 13 and Defendant Kyle Elworth’s Motion to Dismiss for Insufficient Service of Process (#8), filed 14 March 27, 2013; Plaintiff’s Response (#12), filed April 8, 2013; and Defendants’ Reply (#15), filed 15 April 16, 2013. 16 This case was removed to this Court on March 25, 2013. (#1). Prior to removal, Plaintiff 17 attempted to serve Defendants Anthony Saros and Kyle Elworth by mail. Although not clear, it 18 appears the attempted service by mail occurred prior to removal. After removal, on March 27, 19 2013, Defendants Saros and Elworth filed a motion to dismiss for insufficiency of service of 20 process under Fed. R. Civ. P. 12(b)(5) arguing that service by mail is not proper and should be 21 quashed. In response, Plaintiff concedes that has not properly served Defendants Saros or Elworth. 22 See Resp. (#12) at 1:27-30. 23 DISCUSSION 24 Defendants Saros and Elworth seek to dismiss Plaintiff’s complaint under Fed. R. Civ. P. 25 12(b)(5) for insufficiency of service of process, which challenges the mode or method of service of 26 the summons and complaint. Wasson v. Riverside County, 237 F.R.D. 423, 424 (C.D. Cal. 2006) 27 (citations omitted). “A federal court does not have jurisdiction over a defendant unless the 28 defendant has been served properly under [Rule] 4.” Direct Mail Specialists v. Eclat Computerized 1 Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988); see also Murphy Bros., Inc. v. Mitchell Pipe 2 Stringing, Inc., 526 U.S. 344, 350 (1999) (“Service of process, under longstanding tradition in our 3 system of justice, is fundamental to any procedural imposition on a named defendant.”). Where the 4 validity of service is contested, the burden is on the party claiming proper service to establish its 5 validity. Cranford v. United States, 359 F.Supp.2d 981, 984 (E.D. Cal. 2005) (citing Grand 6 Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993)). Assuming 7 insufficiency of service of process, the Court has discretion to dismiss an action or simply quash 8 service. See e.g., SHJ v. Issaquah School District No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006) 9 citing Stevens v. Security Pac. Nat’l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976 ) (“the choice 10 11 between dismissal and quashing service of process is in the district court’s discretion.”). The primary issue presented by Defendants is the sufficiency of service of process under 12 Rule 12(b)(5). Plaintiff does not contest any of the facts set forth in Defendants’ motion and 13 concedes that he has not served Defendants. When service is not perfected prior to removal, “such 14 process may be completed or new process issued in the same manner as in cases originally filed” in 15 federal court. See 28 U.S.C. § 1448. In the Ninth Circuit, where summons was issued in a state 16 court proceeding but was not served prior to removal, “the federal court cannot ‘ complete’ the 17 state process by permitting it to be served after removal; rather the federal court must issue new 18 process pursuant to [Federal Rule of Civil Procedure 4].” Glenn v. Terry’s Tire Town, Inc., 2013 19 WL 260668 (D. Nev.) (quoting Beecher v. Wallace, 381 F.2d 372, 373 (9th Cir. 1967). The reason 20 being that the state court process becomes “null and void” on the date the action is removed to 21 federal court. See Richards v. Harper, 864 F.2d 85, 87 (9th Cir. 1988) (citing Beecher, 381 F.2d at 22 373). Thus, after removal, a plaintiff must secure a new summons from the federal court and serve 23 it pursuant to Rule 4. Id.; Fed. R. Civ. P. 81(c); Fed. R. Civ. P. 4(c). 24 To the extent it is necessary, the Court will grant the motion and exercise its discretion to 25 quash service under Rule 12(b)(5). See Issaquah School District No. 411, 470 F.3d at 1293 26 (citation omitted). Plaintiff is instructed to obtain a new summons from this Court and will have 27 120-days from the date of removal, or until July 23, 2013, to effectuate service or seek additional 28 time to do so. See Fed. R. Civ. P. 4(m); see also Terry’s Tire Town, Inc., 2013 WL 560668 at *2 2 1 (citations omitted). Upon completion of service, Plaintiff shall file a proof of service in conformity 2 with Fed. R. Civ. P. 4(l). 3 4 5 IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss for Insufficient Service of Process (#8)is granted as set forth herein. DATED: June 12, 2013. 6 7 8 ______________________________________ C.W. Hoffman, Jr. United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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