Wilcox et al v. Portfolio Recovery Associates, LLC

Filing 28

ORDER Granting 8 Motion to Dismiss for insufficient service of process. Plaintiffs may effectuate service of process no later than 12/16/2020. Signed by Magistrate Judge Nancy J. Koppe on 11/16/2020. (Copies have been distributed pursuant to the NEF - MR)

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Case 2:20-cv-01545-JAD-NJK Document 28 Filed 11/16/20 Page 1 of 4 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 BRUCE WILCOX, et al., Case No.: 2:20-cv-01545-JAD-NJK Plaintiff, 10 ORDER v. 11 12 [Docket No. 8] PORTFOLIO RECOVERY ASSOCIATES, LLC, 13 14 Defendants. Pending before the Court is Defendant Portfolio Recovery Associates, LLC’s motion to 15 dismiss. Docket No. 8. The Court has considered Defendant’s motion, Plaintiffs’ response, and 16 Defendant’s reply. Docket Nos. 8, 11, 14. The motion is properly resolved without a hearing. See 17 Local Rule 78-1. 18 I. BACKGROUND 19 On March 12, 2020, Plaintiffs initiated an action against Defendant in state court. Docket 20 No. 1-1. On August 21, 2020, Defendant removed the action to this Court. Docket No. 1. On 21 September 10, 2020, Defendant moved to dismiss Plaintiffs’ complaint for insufficient service of 22 process and for failure to state a claim. Docket No. 8. 23 II. STANDARDS 24 A Rule 12(b)(5) motion is the proper vehicle for challenging the “insufficiency of service 25 of process.” 1 Fed.R.Civ.P. 12(b)(5). “A federal court does not have jurisdiction over a defendant 26 unless the defendant has been served properly under Fed.R.Civ.P. 4.” Direct Mail Specialists v. 27 1 Unless otherwise noted, references to “Rules” refer to the Federal Rules of Civil 28 Procedure. 1 Case 2:20-cv-01545-JAD-NJK Document 28 Filed 11/16/20 Page 2 of 4 1 Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). Once service of process is 2 properly challenged, the plaintiff bears the burden of establishing that service was valid under Rule 3 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). District courts have broad discretion 4 to either dismiss an action entirely for failure to effectuate service or to quash the defective service 5 and permit re-service. See SHJ v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 6 2006). The Ninth Circuit has emphasized the public policy favoring disposition of cases on their 7 merits. See Pagalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). When there remains a chance 8 that service can be accomplished and the defendant has not been prejudiced, courts generally quash 9 service rather than dismissing the case. See Hickory Travel Systems, Inc. vs. TUI AG, 213 F.R.D. 10 547, 553 (N.D. Cal. 2003) (citing Umbenhauer v. Woog, 969 F.2d 25, 31 (3d Cir. 1992)). 11 III. ANALYSIS 12 Defendant submits that Plaintiffs’ complaint must be dismissed for insufficient service of 13 process. Docket No. 8 at 3–4. Service is to be provided pursuant to the law of the forum state. 14 See Fed.R.Civ.P. 4(e)(1). Nevada law provides that a plaintiff may properly serve a company by 15 delivering a copy of the summons and complaint to the company’s authorized officers or registered 16 agents. See Nev.R.Civ.P. 4.2(c)(1)(A); see also Nev.Rev.Stat. § 86.261. Defendant submits that 17 Plaintiffs did not serve any of its authorized officers or registered agents. Docket No. 8 at 4. 18 Defendant submits that Plaintiffs instead served Michelle Cox, the community manager of the 19 complex in which Defendant maintains a local office. Id. Defendant further submits that Ms. Cox 20 is not Defendant’s employee or registered agent. Docket No. 8-1 at 3. 21 In response, Plaintiffs submit that Deputy Sheriff David Amani properly served a copy of 22 the summons and complaint to Defendant’s “authorized employee, Michelle Cox.” Docket No. 23 10 at 3. Plaintiffs cite to Deputy Sheriff Amani’s affidavit of service, which states that he delivered 24 a copy of the summons and complaint to “Michelle Cox, community manager.” Id. at 11. 25 Plaintiffs further submit that service was proper because filings related to underlying state court 26 actions between the parties listed the same address where Deputy Sheriff Amani effectuated 27 service. Id. at 3. 28 2 Case 2:20-cv-01545-JAD-NJK Document 28 Filed 11/16/20 Page 3 of 4 1 In reply, Defendant submits that Plaintiffs provide no evidence showing that Ms. Cox is 2 Defendant’s authorized agent. Docket No. 14 at 2. Defendant further submits that Deputy Sheriff 3 Amani’s affidavit of service does not state that Ms. Cox is Defendant’s employee. Id. at 3. In 4 response to Plaintiffs’ assertion that related state court filings provide the address for proper 5 service, Defendant submits that there is no evidence that Defendant’s counsel in the state court 6 actions is authorized to accept service of process for the instant action. Id. 7 The Court finds that Plaintiffs have failed to meet their burden establishing that service 8 was proper. Deputy Sheriff Amani’s affidavit of service fails to show that Ms. Cox is Defendant’s 9 registered agent or authorized employee. Absent any evidence showing that Ms. Cox is 10 Defendant’s registered agent or authorized officer, the Court finds that Plaintiffs’ service of 11 process was insufficient. As a result, the Court does not have jurisdiction over Defendant and will 12 not address Defendant’s arguments challenging the sufficiency of Plaintiffs’ claims. See Hobby 13 v. Mulhern, 2005 WL 2739010, at *1 (D. Ariz. Oct. 21, 2005) (“Because Defendant’s jurisdictional 14 attack is dispositive in this case, the Court will not address whether Plaintiff has failed to state a 15 claim.”). 16 Defendant submits that Plaintiffs’ failure to effectuate service of process warrants dismissal 17 of the instant action. Docket No. 14 at 3. However, Defendant fails to demonstrate that Plaintiffs’ 18 insufficient service of process caused prejudice. See Hickory Travel Systems, Inc., 213 F.R.D. at 19 553. Moreover, a chance remains that service of process can be accomplished. See id. Given the 20 public policy favoring disposition of cases on their merits, the Court finds that dismissal of the 21 instant action is not warranted. Rule 4(m) provides for an extension of time to effectuate service 22 of process if a defendant is not served within 90 days after the complaint is filed. Fed.R.Civ.P. 23 4(m). The Court will allow Plaintiffs until December 14, 2020, to properly effectuate service of 24 process. 25 IV. CONCLUSION 26 Accordingly, Defendant’s motion to dismiss for insufficient service of process is 27 GRANTED, with leave to re-serve. Docket No. 8. Service of the summons and complaint is 28 quashed under Rule 12(b)(5). Plaintiffs may effectuate service of process no later than December 3 Case 2:20-cv-01545-JAD-NJK Document 28 Filed 11/16/20 Page 4 of 4 1 16, 2020. Failure to effectuate service of process may result in a recommendation that this case 2 be dismissed without prejudice. Upon proper service, Defendant may re-file its motion to dismiss 3 for failure to state a claim. 4 IT IS SO ORDERED. 5 Dated: November 16, 2020. 6 7 ______________________________________ NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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