Wickenkamp v. Hampton et al

Filing 68

Opinion and Order: The Court GRANTS the Motion 35 to Dismiss Pursuant to Fed. R. Civ. P. 12(b) (5) of Defendants D. Rahn Hostetter, D. Zachary Hostetter, and Rebecca J. Knapp, GRANTS the Motion 44 to Dismiss of Defendant Scott Hampton, and DISMISSES without prejudice Plaintiff's claims against Rahn Hostetter, Zachary Hostetter, Knapp, and Scott Hampton. Signed on 02/24/2014 by Judge Anna J. Brown. See attached 7 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MARY WICKENKAMP 1
Plaintiff,
v.
BRUCE HAMPTON, VENESE HAMPTON,
SCOTT HAMPTON, D. RAHN
HOSTETTER, D. ZACHARY
HOSTETTER, REBECCA A. KNAPP,
JOHN DOE NO. 1, and JOHN DOE
NO. 2,
Defendants.

MARY WICKENKAMP
1801 College Drive
Victoria, TX 77901
[phone]
Plaintiff, Pro Se
SCOTT HAMPTON
P.O. Box 864
Joseph, OR 97846
Defendant, Pro Se
1 - OPINION AND

O~DER

3:13-CV-00152-BR
OPINION AND ORDER

THOMAS C. PEACHEY
401 E. Third Street, Suite 105
P.O. Box 2190
The Dalles, OR 97058
[phone]
Attorney for Defendants D. Rahn Hostetter, D. Zachary
Hostetter, and Rebecca J. Knapp

BROWN, Judge.
This matter comes before the Court on the Motion (#35) to
Dismiss Pursuant to Fed. R. Civ. P. 12(b) (5) of Defendants D.
Rahn Hostetter, D. Zachary Hostetter, and Rebecca J. Knapp and
the Motion (#44) to Dismiss of Defendant Scott Hampton.

For the

reasons that follow, the Court GRANTS Defendants' Motions and
DISMISSES without prejudice Plaintiff's claims against Rahn
Hostetter, Zachary Hostetter, Knapp, and Hampton.

BACKGROUND
On January 28, 2013, Plaintiff Mary Wickenkamp filed a pro

se Complaint in this Court in which she alleged claims against
Defendants for violation of the Racketeering Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1962(c) and
1964(c); intentional infliction of emotional distress; slander by
false light and defamation; violation of 18 U.S.C. §§ 2511 and
2520; and violation of Oregon's Unfair Trade Practices Act
(UTPA), Oregon Revised Statute§§ 646.607 and 646.638.
On January 30, 2013, the Court issued an Opinion and Order
2 - OPINION AND ORDER

in which it granted Plaintiff's Application to Proceed In Forma

Pauperis, but dismissed Plaintiff's Complaint with leave to file
an amended complaint curing the deficiencies set out in the
Court's Opinion and Order.
On March 19, 2013, Plaintiff filed an Amended Complaint
asserting claims against Defendants for violation of RICO, 18
U.S.C. §§ 1962(c) and 1964(c); violation of Oregon's Racketeering
Influenced and Corrupt Organizations Act (ORICO), Oregon Revised
Statutes§§ 166.720 and 166.725; intentional infliction of
emotional distress; slander by false light and defamation;
violation of 18 U.S.C. § 2511; and violation of the UTPA, Oregon
Revised Statute§§ 646.607 and 646.638.
The Court granted Plaintiff several extensions of time to
file proofs of service.

On July 30, 2013, the Court entered an

Order requiring Plaintiff to file proofs of service and a status
report as to service no later than September 30, 2013.
On September 23, 2013, three Summons and copies of
Plaintiff's First Amended Complaint addressed to D. Rahn
Hostetter, D. Zachary Hostetter, and Rebecca A.

[sic] Knapp were

delivered via certified mail to the offices of the Hostetter Law
Group LLP and the Knapp Law Office in Enterprise, Oregon.

The

certified mailings for D. Rahn Hostetter and D. Zachary Hostetter
were signed for by legal assistant Tami Phinney.

The certified

mailing for Rebecca Knapp was signed for by legal assistant

3 - OPINION AND ORDER

Marilyn Harman.

Defendants Rahn Hostetter, Zachary Hostetter,

and Knapp testify in their Declarations that they have never
received any Summons or copies of Plaintiff's First Amended
Complaint via first-class mail at their dwellings, usual places
of abode, or regular places of business.
Also on September 23, 2013, Scott Hampton signed for a
certified mailing of the Summons and Amended Complaint at the
Joseph, Oregon, post office.

Hampton states in his Declaration

that he never received any Summons or copies of Plaintiff's First
Amended Complaint via first-class mail.
On October 14, 2013, Rahn Hostetter, Zachary Hostetter, and
Knapp filed a Motion to Dismiss Plaintiff's claims against them
for insufficient service of process.
On October 15, 2013, Hampton filed a Motion to Dismiss
Plaintiff's claims against them for insufficient service of
process.
On December 20, 2013, the Court entered an Order directing
Plaintiff to file a response to Defendants' Motions no later than
January 10, 2014.
Plaintiff did not file any response to Defendants' Motions,
and the Court took this matter under advisement on January 10,
2014.

4 - OPINION AND ORDER

DISCUSSION
Federal Rule of Civil Procedure 4 (e) ( 1) and ( 2) provides
individuals within the Judicial District of the United States may
be served either "pursuant to the law of the state in which the
district court is located" or "by delivering a copy of the
summons and of the complaint to the individual personally or by
leaving copies thereof at the individual's dwelling . .
some person of suitable age .
delivering a copy

with

. . then residing therein or by

to an agent authorized by appointment or

by law to receive service of process."
It is undisputed that Plaintiff did not deliver copies of
the Summons and Amended Complaint to Rahn Hostetter, Zachary
Hostetter, Knapp, or Hampton personally.

In addition, Rahn

Hostetter, Zachary Hostetter, and Knapp testify in their
Declarations that they did not receive copies of the Summons and
Amended Complaint at their dwellings or usual places of abode and
that the individuals who signed the certified mailing receipts
are not agents authorized to accept service on their behalf.
Hampton also testifies in his Declaration that he did not receive
a copy of the Summons and Amended Complaint at his dwelling or
usual place of abode.

Plaintiff, therefore, did not serve Rahn

Hostetter, Zachary Hostetter, Knapp, or Hampton pursuant to
Federal Rule of Civil Procedure 4(e) (2).
As noted, Federal Rule of Civil Procedure 4 (e) (1) also

5 - OPINION AND ORDER

permits service on individuals pursuant to the law of the state
in which the district court is located.

Oregon permits service

on individual defendants by mail as prescribed in Oregon Rule of
Civil Procedure 7D(3) (a), which provides in pertinent part:
Service may also be made upon an individual
defendant .
. by a mailing made in accordance
with paragraph (2) (d) of this section provided the
defendant signs a receipt for the certified,
registered, or express mailing, in which case
service shall be complete on the date on which the
defendant signs a receipt for the mailing.
Oregon Rule of Civil Procedure 7D(2) (d), in turn, provides in
pertinent part:
[S)ervice by mail shall be made by mailing true
copies of the summons and the complaint to the
defendant by first class mail and by any of the
following:
certified, registered, or express mail
with return receipt requested. For purposes of
this section, "first class mail• does not include
certified, registered, or express mail, return
receipt requested, or any other form of mail which
may delay or hinder actual delivery of mail to the
addressee.
As noted, Defendants Rahn Hostetter, Zachary Hostetter, and
Knapp did not sign the receipt for the delivery of the certified
mail containing the Summons and copies of the Amended Complaint.
In addition, Rahn Hostetter, Zachary Hostetter, and Knapp testify
in their Declarations that the individuals who signed the
certified mailing receipts are not agents authorized to accept
service on their behalf.

Finally, Rahn Hostetter, Zachary

Hostetter, and Knapp testify in their Declarations that they
never received the Summons or copies of the Amended Complaint via
6 - OPINION AND ORDER

first-class mail.

Similarly, Hampton testifies in his

Declaration that he never received the Summons or copies of the
Amended Complaint via first-class mail.
The Court, therefore, concludes Plaintiff failed to properly
serve Rahn Hostetter, Zachary Hostetter, Knapp, or Hampton
pursuant to Federal Rule of Civil Procedure 4(e).

Accordingly,

the Court grants Defendants' Motions to Dismiss and dismisses
Plaintiff"s claims against Rahn Hostetter, Zachary Hostetter,
Knapp, and Scott Hampton without prejudice.

CONCLUSION
For these reasons, the Court GRANTS the Motion (#35) to
Dismiss Pursuant to Fed. R. Civ. P. 12(b) (5) of Defendants D.
Rahn Hostetter, D. Zachary Hostetter, and Rebecca J. Knapp,
GRANTS the Motion (#44) to Dismiss of Defendant Scott Hampton,
and DISMISSES without prejudice Plaintiff's claims against Rahn
Hostetter, Zachary Hostetter, Knapp, and Scott Hampton.
IT IS SO ORDERED.
DATED this 24th day of February, 2014.

Is/ Anna J. Brown
ANNA J. BROWN
United States District Judge

7 - OPINION AND ORDER