Urioste v. Corizon and Centurion Health Care Providers et al

Filing 109

ORDER by Magistrate Judge Kevin R. Sweazea to File Notice with the Court by April 4, 2022. (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSHUA URIOSTE,
Plaintiff,
vs.

No. 1:16-CV-00755-JCH-KRS

CORIZON AND CENTURION
HEALTH CARE PROVIDERS, et al.,
Defendants.
ORDER
THIS MATTER is before the Court sua sponte. The Court has been engaged for some
time now in efforts to ensure that proper service has been perfected on all Defendants to this
action. Among those Defendants is FNU Cordova, a one-time employee of the New Mexico
Corrections Department (NMCD). (See, e.g., Doc. 69) (order directing NMCD counsel to submit
any known address for Cordova for purposes of service); (Doc. 85) (clerk’s minutes for status
conference addressing, inter alia, need for service upon Cordova); (Doc. 86) (order directing
NMCD counsel to provide identity and last known address for Cordova). In its last order on the
subject, the Court noted that NMCD counsel could elect to accept service on behalf of Defendant
Cordova “if defense counsel will be representing” him. (See Doc. 86 at 2).
Counsel for NMCD subsequently submitted a status report stating that he would “accept
service on behalf of Defendant FNU Andrew Cordova.” (Doc. 87 at 2). The Court understood
this statement to mean that Defendant Cordova had authorized counsel to represent him and that
Defendant Cordova had authorized counsel to accept service on his behalf. However, in
addressing claims against Cordova in their Second Martinez Report filed on November 22, 2021,
the NMCD Defendants through counsel stated as follows:

Upon information and belief, Defendant FNU Cordova is former C/O Andrew
Cordova who is no longer an NMCD employee and therefor unavailable to execute
an affidavit for the purposes of this Second Martinez report.
(Doc. 104 at 14); (see also id. at 26) (same).
The NMCD Defendants’ statement that they only understand Defendant Cordova to be
Andrew Cordova “upon information and belief,” along with the statement that Andrew Cordova
has not been available to execute an affidavit concern the subject matter of this action, leaves the
Court concerned that defense counsel may not yet have been in contact with Defendant Cordova.
This, in turn, leads the Court to worry that counsel may not be fully authorized to represent
Cordova’s interests in this proceeding, which at the very least suggests that counsel may not have
been authorized to accept service of process on Cordova’s behalf.
Service may be made on a party’s designated agent, which may include the party’s
attorney, if that agent has been authorized by appointment to receive service. See FED. R. CIV. P.
4(e)(2). “Service of process is not effectual on an attorney solely by reason of his capacity as an
attorney, [but] the party must have appointed [the] attorney as his agent for service of process.”
Williams v. Jones, 11 F.3d 247, 251 (1st Cir. 1993) (quotation omitted); see also United States v.
51 Pieces of Real Property Roswell, N.M., 17 F.3d 1306, 1313 (10th Cir. 1994) (quoting Santos
v. State Farm Fire & Cas. Co., 902 F.2d 1092, 1094 (2d Cir. 1990)) (“[S]ervice of process on an
attorney not authorized to accept service for his client is ineffective . . . .”). The key question is
whether the [party] has expressly or impliedly granted the attorney authorization to accept
service. See In re Focus Media, Inc., 387 F.3d 1077, 1083 (9th Cir. 2004) (citation omitted);
United States v. Bosurgi, 343 F. Supp. 815, 817 (S.D.N.Y. 1972). If an attorney has not been
explicitly authorized by a party to accept service, implied authorization is determined “from all
the circumstances accompanying the attorney’s appointment which indicate the extent of
authority the [party] intended to confer.” In re Focus Media, 387 F.3d at 1083 (quotation
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omitted). Alternatively, an agent may be authorized by law to accept service on behalf of a party.
See FED. R. CIV. P. 4(e)(2).
The Court does not doubt that NMCD Defendants’ counsel is authorized to represent
Defendant Cordova (and accept service on his behalf) in his official capacity, since it appears
that counsel is authorized to represent NMCD itself in this proceeding. Cf., e.g., Johnson v. Bd.
of Cnty. Comm’rs, 85 F.3d 489, 493 (10th Cir. 1996) (“An official capacity suit is only another
way of pleading an action against an entity of which an officer is an agent.”). But an attorney’s
status as an agent of a party’s employer is normally not sufficient to establish that he has been
authorized to serve as an agent or representative of the employee in his individual capacity. See,
e.g., Shaw v. 500516 N.B. Ltd., No. CV-09-264-B-W, 2009 WL 2184953, at *2 (D. Me. July 21,
2009). Because this is the case, and given the indications of counsel’s apparent lack of contact
with Defendant Cordova, additional assurances are needed from defense counsel so as to confirm
that service has been properly effected and that counsel is authorized to defend Defendant
Cordova against the individual-capacity claims asserted against him.
Accordingly, within ten (10) days of the entry of this Order, defense counsel shall file a
Notice with the Court affirmatively stating whether: (1) Defendant Cordova has expressly
authorized counsel to represent him in his individual capacity in this action, and to accept service
of process for him in that capacity; (2) Defendant Cordova has impliedly authorized counsel to
so act; (3) counsel was authorized by law to accept service on behalf of Defendant Cordova in
his individual capacity; or (4) counsel was authorized only to accept service on behalf of
Defendant Cordova in his official capacity in this action. If counsel states that he was impliedly
authorized to accept service on behalf of Defendant Cordova in his individual capacity, counsel
will bring to the Court’s attention, either in the Notice or in a submission to chambers, “the

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circumstances accompanying the attorney’s appointment which indicate the extent of authority
the [party] intended to confer.” See In re Focus Media, 387 F.3d at 1083. If counsel contends
that he was authorized by law to accept service on Defendant Cordova’s behalf, he will cite to
relevant legal authorities supporting this contention.
IT IS SO ORDERED.

_____________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

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