Ensley v. Humboldt General Hospital et al

Filing 16

ORDER granting Humboldt General Hospital's 12 Motion to Quash Service of Process. Signed by Magistrate Judge William G. Cobb on 2/4/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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HORTON HOWARD ENSLEY, JR.,

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Plaintiff,
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vs.
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HUMBOLDT COUNTY HOSPITAL
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DISTRICT, dba HUMBOLDT GENERAL )
HOSPITAL,
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Defendants.
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______________________________________)

3:15-cv-00585-RCJ-WGC
ORDER
Re: ECF No. 12

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Before the court is Defendant Humboldt County Hospital District’s Motion to Quash Service of
Process. (ECF No. 12.)1

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Defendant Humboldt County Hospital District, dba Humboldt General Hospital (HGH), objects

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to and seeks to quash Plaintiff’s attempts to serve HGH by mail. (ECF No. 12; ECF No 11-1 at 2 and

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9.) HGH contends that service on a corporation can only be effected in accordance with Fed. R. Civ. P.

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4(h)(1). Rule 4(h)(1) provides that service on a business association (corporation, partnership, etc.) must

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be accomplished

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(1)

in the same manner as service upon an individual in Rule 4(e)(1); or

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(2)

by serving upon the business association’s general agent, accompanied also with a

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mailing of the process to the defendant.

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Defendant notes Rule 4(e)(1) also allows service to be effected under the terms and provisions

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of state law where the district is located. In that respect, HGH points to the Nevada rule on corporate

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Refers to court’s Electronic Case Filing number.

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service which is found in Nev. R. Civ. P. 4(d)(1), which rule requires a plaintiff to either personally

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serve an agent or officer of the corporation or to effect service via the offices of the Nevada Secretary

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of State. Defendant therefore argues that “neither the Federal Rules of Civil Procedure, nor the Nevada

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Rules of Civil Procedure permit service of process by certified mail when serving an entity such as

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HGH.” (ECF No. 12 at 2.)

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Although, as discussed infra, the court will grant Defendant’s motion, the court notes that the

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Federal Rules do indeed provide a mechanism for effecting service solely by mail. Rule 4(d) recognizes

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the principle that an individual, corporation or other defendant who or which is subject to service under

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Rules 4(e), (f) or (h) “has a duty to avoid unnecessary expenses of serving the summons.” To minimize

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the expense of litigation, Rule 4(d) allows a plaintiff to notify a defendant by mail that an action has been

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commenced and request that defendant waive formal or traditional service of a summons. Rule 4(d)(1).

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Subparts (A) - (G) of the Rule set forth certain formalities which must accompany the Rule 4(d)

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notice and request. A party served by mail under Rule 4(d) is not obligated to accept service in that

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fashion. The consequence in failing to do so, however, is that if traditional service is effected, and if the

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District Court finds the Defendant, without good cause, failed to sign and return the waiver, the District

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Court is empowered to award Plaintiff the costs of formal service and reasonable attorneys fees to collect

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those service expenses. Rule 4(d)(2). A defendant’s obligation to reimburse these costs is not dependent

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on who eventually becomes the prevailing party in the litigation. Estate of Darulis v. Garate, 401 F.3d

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1060, 1063-64 (9th Cir. 2005). In other words, a defendant who avoids (proper) service under Rule 4(d)

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does so at its peril.

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In this instance, however, it does not appear the Plaintiff complied with the formalities of

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Rule 4(d). (See ECF No. 11-1 at pp. 2 and 9.) Thus, the service by mail protocols of Rule 4(d) are not

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activated. If Plaintiff had complied with the terms and provisions of Rule 4(d), it would have been

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become incumbent upon Defendant to elect whether to accept service in that fashion. But because, as

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best as the court can ascertain, Plaintiff did not satisfy the requirements of Rule 4(d), then service cannot

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be evaluated under that provision. Accordingly, the court must look to Rule 4(h)(1) to ascertain whether

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Plaintiff has validly effected service upon HGH by simply mailing the summons and complaint to HGH.

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The court concludes Plaintiff did not and, therefore, Defendant’s motion to quash service of process

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(ECF NO. 12) is GRANTED.

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IT IS SO ORDERED.

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DATED: February 4, 2016.

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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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