Pinkerton v. Hanson Motors Inc et al

Filing 11

ORDER granting in part and denying in part 5 Motion to Dismiss by Judge Benjamin H. Settle. Plaintiff must file affidavit of service of summons and complaint no later than March 3, 2017 or case will be dismissed. (TG)

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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 5 6 7 JAMES B. PINKERTON, 8 Plaintiff, 9 10 11 v. HANSON MOTORS, INC. and STEVEN W. HANSON, CASE NO. C16-5634BHS ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS Defendants. 12 13 This matter comes before the Court on Defendant Hanson Motors, Inc.’s 14 (“Hanson”) motion to dismiss for insuffiency of process and insufficiency of service of 15 process (Dkt. 5). The Court has considered the pleadings filed in support of and in 16 opposition to the motion and the remainder of the file and hereby grants in part and 17 denies in part the motion for the reasons stated herein. 18 I. PROCEDURAL HISTORY 19 On July 15, 2016, Plaintiff James Pinkerton (“Pinkerton”) filed an employment 20 discrimination complaint against Hanson. Dkt. 1. 21 22 ORDER - 1 1 On December 15, 2016, Hanson filed the instant motion. Dkt. 5. On January 6, 2 2017, Hanson replied stating that Pinkerton failed to respond and the Court should grant 3 the motion. Dkt. 7. Later that day, Pinkerton filed a response. Dkt. 8. On January 11, 4 2016, Hanson filed a surreply. Dkt. 10. 5 II. DISCUSSION 6 Hanson seeks dismissal of Pinkerton’s claims for insufficiency of service of 7 process. The plaintiff bears the burden of establishing the validity of service under Rule 8 4. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). In some instances, Rule 4 9 may be liberally construed “so long as the opposing party receives sufficient notice of the 10 complaint.” United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 11 1371, 1382 (9th Cir. 1984). The sufficient notice exception, however, is not a license to 12 ignore Rule 4. The Ninth Circuit has held that failure to comply with service 13 requirements does not warrant dismissal if: “(a) the party that had to be served personally 14 received actual notice, (b) the defendant would suffer no prejudice from the defect in 15 service, (c) there is a justifiable excuse for the failure to serve properly, and (d) the 16 plaintiff would be severely prejudiced if his complaint were dismissed.” Borzeka v. 17 Heckler, 739 F.2d 444, 447 (9th Cir. 1984). A party’s pro se status, alone, is not a 18 justifiable excuse for defective service. See Hamilton v. Endell, 981 F.2d 1062, 1065 19 (9th Cir. 1992). 20 Although Pinkerton provides some reasons for his failure to serve, Dkt. 8, the 21 Court finds that none rise to the level of a justifiable excuse to fail to deliver a couple 22 documents to his former employer. However, even in unjustified circumstances, the ORDER - 2 1 Court may dismiss the action without prejudice or order that proper service be made 2 within a specified time. See Fed. R. Civ. P. 4(m); see also Stevens v. Sec. Pac. Nat’l 3 Bank, 538 F.2d 1387, 1389 (9th Cir. 1976). The Court finds that, in light of Pinkerton’s 4 circumstances of dealing with illnesses and losing his home, allowing additional time to 5 effectuate service is warranted. Therefore, the Court grants Hanson’s motion on the 6 merits, but denies it as to remedy. 7 8 III. ORDER Therefore, it is hereby ORDERED that Hanson’s motion to dismiss for 9 insuffiency of process and insufficiency of service of process (Dkt. 5) is GRANTED in 10 part and DENIED in part. Pinkerton must file an affidavit of service of summons and 11 complaint no later than March 3, 2017. Failure to comply or otherwise respond will 12 result in DISMISSAL without prejudice without further order of the Court. 13 Dated this 8th day of January, 2017. A 14 15 BENJAMIN H. SETTLE United States District Judge 16 17 18 19 20 21 22 ORDER - 3

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