United States Of America v. Bogart et al

Filing 21

ORDER denying deft Dustin Bogart's motion to strike 13 . (See order for complete details.) Signed by Honorable Christopher C. Conner on 10/12/12. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

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:
Plaintiff
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v.
:
:
DUSTIN BOGART, MARCY
:
BOGART, SOUTHERN COUNTRY :
RANCH,
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Defendants
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:

CIVIL ACTION NO. 4:12-CV-0347
(Judge Conner)

ORDER
AND NOW, this 12th day of October, upon consideration of defendant Dustin
Bogart’s motion to strike (Doc. 13) the government’s service of process against
defendant Southern Country Ranch under Federal Rule of 12(b)(5),1 which states in
relevant part “[] a party may assert the following defenses by motion: [] insufficient
service of process . . . .” Fed. Rule. Civ. Pro. 12(b)(5), and the court further
acknowledging that Mr. Bogart does not contest that he was presented with a
summons and a copy of the complaint as required by Federal Rule of Civil
Procedure 4(e)(2), which provides process may be served by either “delivering a
copy of the summons and of the complaint to the individual personally,” Fed. R.

1

Mr. Bogart filed his motion under Federal Rule of Civil Procedure 12(f)
which provides, “[t]he court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter,” either sua sponte or
by motion. See Fed. R. Civ. Pro. 12(f). In the instant case, the court will liberally
construe the pro se motion as filed pursuant to Rule 12(b)(5), which is the applicable
rule pertinent to defendant’s arguments.

Civ. Pro. 4(e)(2)(A), or “leaving a copy of each at the individual’s dwelling or place of
abode . . ., Fed. R. Civ. Pro. 4(e)(2)(B), or “delivering a copy of each to an agent
authorized by appointment or by law to receive service of process,” Fed. R. Civ.
Pro. 4(e)(2)(C), and the court further noting that “a return of service by a private
process server creates a rebuttable presumption that service was effectuated . . .
[and a] bare allegation by a defendant that he was improperly served cannot be
allowed to belie the private process server’s return[,]”2 Susquehanna Commercial
Fin. v. French, Civ. No. 10-7481, 2011 WL 1743503, at *3 (E.D. Pa. 2011), and the
court further observing that Mr. Bogart contends he is not a “trustee” of Southern
Country Ranch, however, the court concluding that under Federal Rule of Civil
Procedure 4(h)(1)(B), service may be affected on “an officer, a managing or general
agent, or any other agent authorized by appointment or by law to receive service,”
Fed. R. Civ. Pro. 4(h)(1)(B), or by “following state law for serving a summons . . . in
the state where the district court is located or service is to be made,” Fed. R. Civ.
Pro. 4(e), and the court being aware that under Pennsylvania law service of process
is sufficient if it is served “at any office or usual place of business of the defendant . .
. to the person for the time being in charge thereof [,]” Pa. R. Civ. Pro. (a)(2)(iii), and

2

Private process server Casin Shunk filed an affidavit with the court stating
that “[o]n the 6th day of July, at 12:20PM, at the address of 792 Brush Valley Road
RR5 BOX 110, SUNBURY, Northumberland, PA 17801; this affiant served the
above described documents upon SOUTHERN COUNTRY RANCH by then and
there personally delivering 1 true and correct cop(ies) thereof, by then presenting to
and leaving the same with Dustin Bogart, Trustee, A white male approx. 45-55 years
of age and 5'9"-5'10" in height weighing 180-200 lbs with gray hair.” (Doc. 8-1).
2

a “person for the time being in charge” can “be an individual with some direct
connection to the party being served or someone who the process server deems to
be authorized on the basis of [his or] her representation or authority, as evidenced
by the affidavit of service[,] Collins v. Univ. of Pa., 35 Fed. App’x 352, 353 (3d Cir.
2002), and the court finding that Mr. Bogart is such an individual, it is hereby
ORDERED that the motion to strike (Doc. 13), is DENIED.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge