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