Zeeshan et al v. Zainab Petroleum, Inc. et al

Filing 98

OPINION AND ORDER by Magistrate Judge Kimberly E. West denying 76 Motion in Limine TO Preclude Introduction of Evidence as to Affirmative Defenses and denying 92 Motion to Strike Defendant Gondal Petroleum, Inc.'s Answer and Affirmative Defenses. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
SARAH ZEESHAN and
ZEESHAN CHOUDHRY,

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Plaintiffs,
v.
ZAINAB PETROLEUM, INC.;
GONDAL PETROLEUM, INC.;
BUDGET INN, INC.; and
AHMAD ZULFIQAR,
Defendants.

Case No. CIV-17-447-KEW

OPINION AND ORDER
This matter comes before the Court on Plaintiffs’ Motion in
Limine to Preclude Introduction of Evidence as to Affirmative
Defenses (Docket Entry #76) and Plaintiffs’ Motion to Strike
Defendant Gondal Petroleum, Inc.’s Answer and Affirmative Defenses
(Docket Entry #92).

Plaintiffs commenced this action on December

6, 2017, alleging violations of the Fair Labor Standards Act
(“FLSA”) and the case was assigned to United States Magistrate
Judge Steven P. Shreder.
Defendants,

including

The action was filed against all four

Gondal

Petroleum,

Inc.

(“Gondal”).

On

December 12, 2017, summons were issued to Plaintiffs for all
Defendants, including Gondal.

On January 10, 2018, Jeff Potts

filed an Entry of Appearance for all Defendants, including Gondal.
On

February

5,

2018,

references to Gondal.

a

Joint

Status

Report

was

filed

with

No challenge to service upon Gondal is

referenced in the Report.

On February 7, 2018, the filing of a

District Judge Option form was acknowledged by the Clerk of Court
and the case was reassigned to United States District Judge Ronald
A. White.
On July 20, 2018, an alias summons was issued to Plaintiffs
for Gondal.

On September 12, 2018, a Notice of Filing Process

Server’s Affidavit was filed by Plaintiffs. The appended Affidavit
from

process

server

Kristie

Entmeier

indicated

she

attempted

service upon Gondal through the registered service agent “Saeed
Ahmad” at the store location in Panama, Oklahoma on August 28,
2018.

However, the clerk at the store stated she did not know the

person but that the owner was “Zulfiqar Ahmad” and he was in Saudi
Arabia until the following week.

Ms. Entmeier attempted service a

second time on September 5, 2018.

The clerk at the store called

“Mr. Ahmad” who spoke to the process server and told her he would
not meet with her and that she needed to give the papers to Jeff
Potts, his attorney in Muskogee, Oklahoma.
On October 3, 2018, Defendants filed a Motion for Summary
Judgment, including Gondal.
consented to the undersigned.

On October 9, 2018, the parties
On October 10, 2018, Plaintiffs

filed a Motion in Limine seeking to exclude Gondal’s affirmative
defenses due to the lack of an answer.

On October 24, 2018, all

Defendants, including Gondal, responded to the Motion in Limine.
On November 12, 2018, Jeff Potts filed a Waiver of the Service
of Summons form on behalf of Gondal, stating he recognized that he

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had 60 days from the date of filing to file an answer. On November
15, 2018, this Court conducted a Pretrial Conference where a lack
of an answer by Gondal was discussed. On November 27, 2018, Gondal
filed a Answer and Affirmative Defenses.

On November 27, 2018,

Plaintiffs filed a Motion to Strike Gondal’s Answer.

On December

12, 2018, Gondal responded to the Motion. Attached to the response
is a copy of an e-mail from counsel for Plaintiffs dated September
5, 2018 which requests that Mr. Potts accept service on behalf of
Gondal.
Plaintiffs

appear

to

be

arguing

that

the

telephonic

conversation between “Mr. Ahmad” and the process server and the
aforementioned

e-mail

from

their

counsel

to

Gondal’s

counsel

requesting that he accept service constituted good service upon
Gondal.

The process to obtain a waiver of service of process is

detailed and precise.

In order to take advantage of the waiver

procedure, a plaintiff must comply with the following procedure:
(d) Waiving Service.
(1) Requesting a Waiver. An individual, corporation, or
association that is subject to service under Rule 4(e),
(f), or (h) has a duty to avoid unnecessary expenses of
serving the summons. The plaintiff may notify such a
defendant that an action has been commenced and request
that the defendant waive service of a summons. The notice
and request must:
(A) be in writing and be addressed:
(i) to the individual defendant; or
(ii) for a defendant subject to service under Rule 4(h),
to an officer, a managing or general agent, or any other
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agent authorized by appointment or by law to receive
service of process;
(B) name the court where the complaint was filed;
(C) be accompanied by a copy of the complaint, 2 copies
of the waiver form appended to this Rule 4, and a prepaid
means for returning the form;
(D) inform the defendant, using the form appended to this
Rule 4, of the consequences of waiving and not waiving
service;
(E) state the date when the request is sent;
(F) give the defendant a reasonable time of at least 30
days after the request was sent--or at least 60 days if
sent to the defendant outside any judicial district of
the United States--to return the waiver; and
(G) be sent by first-class mail or other reliable means.
Fed. R. Civ. P. 4(d)(1).
Plaintiffs bear the burden of showing proper service of
process under Rule 4(d). Russell v. Chase Investment Servs. Corp.,
2009 WL 3254898, *2 (N.D. Okla. 2009) citing Flores v. School Bd.
of

DeSoto

Parish,

116

Fed.Appx.

504,

508

(5th

Cir.

2004)(unpublished) and Hanmont v. Oswald, 2009 WL 2588342, *2
(D.Kan. 2009).

In this case, it does not appear that Plaintiffs

attempted to substantially comply with the provisions of Rule 4(d).
Instead, they rely upon the informal telephone call between the
process server and a “Mr. Ahmad”, a name which differs from the
named

individual

Defendant

in

this

case

and

an

e-mail

from

Plaintiffs counsel requesting waiver of service but no apparent
response from Gondal’s counsel until the waiver form is filed in

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November of 2018.

Even if Plaintiffs could be found to have

complied with Rule 4(d), the only result would have been the
assessment of costs under Fed. R. Civ. P. 4(d)(2) and not the
striking

of

the

answer

and

affirmative

defenses.

Moreover,

Plaintiffs have not established that they obtained service upon
Gondal through the traditional means provided by Fed. R. Civ. P.
4(c).1

Based upon these findings, this Court cannot conclude that

Gondal’s answer and associated affirmative defenses were untimely.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion in Limine to
Preclude

Introduction

of

Evidence

as

to

Affirmative

Defenses

(Docket Entry #76) and Plaintiffs’ Motion to Strike Defendant
Gondal Petroleum, Inc.’s Answer and Affirmative Defenses (Docket
Entry #92) are hereby DENIED.
IT IS SO ORDERED this 8th day of April, 2019.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

1

In their reply to Gondal’s response to the Motion to Strike,
Plaintiffs state that an Exhibit A is attached to their filing which is
ostensibly “a timeline of events [which] mitigates against that which
Defendant states.” The attachment consists of three e-mails - the first
dated September 5, 2018 from Plaintiffs’ counsel to the process server
requesting that she attempt service again on Gondal; the second also
dated September 5, 2018 from the process server to Plaintiffs’ counsel
relaying that she went to the store and spoke to “Zulfiqur Arham” on the
telephone who told her to give the papers to Jeff Potts; and the third
from Plaintiff’s counsel to Gondal’s counsel requesting that he accept
service on behalf of Gondal.
This “timeline” does not establish
compliance either with Rule 4(c) or Rule 4(d).

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