Fitzen et al v. Artspace Affordable Housing et al

Filing 92

MEMORANDUM DECISION granting in part and denying in part 54 Motion to Dismiss Party. It is hereby ORDERED that Defendants Motion to Dismiss Kirk A. Cullimore and Thomas Wood for Lack of Personal Jurisdiction (Docket No. 54) is GRANTED IN PART AND DENIED IN PART. Signed by Judge Ted Stewart on 07/17/2012. (tls)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

JOHN FITZEN AND MARIA FITZEN,
Plaintiffs,

MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART
DEFENDANTS’ MOTION TO
DISMISS

vs.
ARTSPACE AFFORDABLE HOUSING,
L.P., ARTSPACE RUBBER COMPANY,
L.C., EVERGREEN MANAGEMENT
GROUP, LLC, THE LAW OFFICES OF
KIRK A. CULLIMORE, LLC,

Case No. 2:09-CV-470 TS

Defendants.

This matter is before the Court on Defendants’ Motion to Dismiss Kirk A. Cullimore and
Thomas Wood for Lack of Personal Jurisdiction. 1 On November 17, 2011, the Court dismissed
Plaintiffs’ amended complaint without prejudice to Plaintiffs’ filing of a second amended
complaint. By the same Order, the Court denied the instant Motion as moot. Now that Plaintiffs
have filed a second amended complaint, the Court finds that the Motion is no longer moot.
I. BACKGROUND
Plaintiffs filed a complaint against Defendant Kirk Cullimore on May 21, 2009.
Defendant Cullimore has never been served by Plaintiffs and did not file an answer to Plaintiffs’

1

Docket No. 54.
1

complaint. Plaintiffs filed an amended complaint adding Thomas Wood as a Defendant on
March 28, 2010. Plaintiffs never served Defendant Wood, although he did file an answer to
Plaintiffs’ amended complaint on July 16, 2010. This answer did not include a defense for
insufficient service of process. On July 22, 2011, Defendants filed the instant Motion, citing
insufficient service of process. Plaintiffs did not oppose this Motion.
II. LEGAL STANDARD
A claim may be dismissed for insufficient service of process under Fed.R.Civ.P.
12(b)(5). However, if a plaintiff is able to show “good cause for the failure [to serve a
defendant], the court must extend the time for service for an appropriate period.” 2 Furthermore,
“[u]nlike subject matter jurisdiction, in personam jurisdiction may be obtained by actions of a
party amounting to a waiver.” 3 Failing to include a 12(b)(5) defense for insufficient service of
process in a responsive pleading constitutes such a waiver. 4
III. ANALYSIS
Defendant Cullimore did not file a responsive pleading or otherwise waive his 12(b)(5)
defense. Furthermore, Plaintiffs have not represented to the Court why Defendant Cullimore
was not served, and therefore have not shown good cause for their failure to serve him. The
Court will therefore grant Defendants’ Motion with respect to Defendant Cullimore.

2

Fed.R.Civ.P. 4(m).

3

English v. 21st Phoenix Corp., 590 F.2d 723, 728 n.5 (8th Cir. 1979).

4

Fed.R.Civ.P. 12(h)(1).
2

As Defendant Wood failed to include a defense for insufficient service of process in his
answer, he waived any Rule 12(b)(5) defense he may have otherwise asserted. The Court will
therefore deny Defendants’ Motion with respect to Defendant Wood.
IV. CONCLUSION
Therefore, it is hereby
ORDERED that Defendant’s Motion to Dismiss Kirk A. Cullimore and Thomas Wood
for Lack of Personal Jurisdiction (Docket No. 54) is GRANTED IN PART AND DENIED IN
PART.
DATED July 17, 2012.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

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