Guerrero v. Wharton

Filing 15

ORDER granting 7 Motion to Quash; denying 9 Motion to Dismiss. Signed by Magistrate Judge Nancy J. Koppe on 9/29/16. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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KELLY GUERRERO,

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Plaintiff(s),

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vs.

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VINCENT NEIL WHARTON,

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Defendant(s).

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Case No. 2:16-cv-01667-GMN-NJK
ORDER
(Docket Nos. 7, 9)

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Pending before the Court is a motion to quash and to dismiss for improper service of process.
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Docket No. 7, 9. Plaintiff filed a response in opposition, and Defendant filed a reply. Docket Nos. 10
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(sealed), 13, 14. The Court finds the motions properly resolved without a hearing. See Local Rule 78-1.
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For the reasons discussed below, the motion to quash is GRANTED and the motion to dismiss is
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DENIED.
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A Rule 12(b)(5) motion is the proper vehicle for challenging the “insufficiency of service of
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process.” See Fed. R. Civ. P. 12(b)(5). “A federal court does not have jurisdiction over a defendant
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unless the defendant has been served properly under Fed.R.Civ.P. 4.” Direct Mail Specialists v. Eclat
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Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir.1988). Once service is challenged, the plaintiff
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bears the burden of establishing that service was valid under Rule 4. Brockmeyer v. May, 383 F.3d 798,
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801 (9th Cir. 2004).
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District courts have broad discretion to either dismiss an action entirely for failure to effect
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service or to quash the defective service and permit re-service. See, e.g., SHJ v. Issaquah School District
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No. 411, 470 F.3d 1288, 1293 (9th Cir.2006). The Ninth Circuit has emphasized the public policy

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favoring disposition of cases on their merits. See, e.g., Pagalunan v. Galaza, 291 F.3d 639, 643 (9th

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Cir. 2002). When there remains a chance that service can be accomplished and the defendant has not

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been prejudiced, courts generally quash service rather than dismissing the case. See, e.g., Hickory Travel

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Sys., Inc. v. TUI AG, 213 F.R.D. 547, 553 (N.D. Cal. 2003) (citing Umbenhauer v. Woog, 969 F.2d 25,

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30 (3d Cir. 1992)).

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Plaintiff relies in this case on the service purportedly effectuated on Defendant in New

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Hampshire. See Docket No. 6-1. Defendant argues that this attempted service did not meet the

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requirements established by either Nevada or New Hampshire law. See Docket No. 7 at 2-4. In

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response, Plaintiff concedes that she cannot meet her burden of establishing sufficiency of process.

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Docket No. 10 at 3. As such, the motion to quash is granted.

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The remaining question is whether the Court should also dismiss the case. As Defendant

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acknowledges in reply, the time period to complete service established by Rule 4(m) has not yet run.

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See Docket No. 14 at 2 (asserting that the deadline to complete service is October 12, 2016). As a result,

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Defendant seeks an advisory order that “this case should be dismissed unless Plaintiff serves Neil within

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the allotted 90-day period.” See id. The Court declines to make such a ruling. Plaintiff shall continue

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attempting service. To the extent Plaintiff is unable to do so by the current deadline, the parties may

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seek further relief from the Court. As such, the motion to dismiss is denied without prejudice.

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IT IS SO ORDERED.

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DATED: September 29, 2016

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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