United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE
before the Court is Defendant LG Chem, Ltd.'s
(“Defendant”) Motion to Dismiss (“Motion to
Dismiss”). (Doc. 82). State Farm Fire and Casualty
Company (“Plaintiff”) has responded
(“Response”), (Doc. 84), and Defendant has
replied (“Reply”), (Doc. 86).
brought this action on behalf of its insured, Hussein
Zeitoun, following a fire in the insured's home on June
23, 2016. The Court recounted the background facts of this
case in its Order on Defendant Amazon.com's Motion to
Dismiss the Fourth Amended Complaint, (Doc. 85 at 1-2), and
need not repeat them here. On June 23, 2017, Plaintiff filed
its Second Amended Complaint in the Maricopa County Superior
Court. (Doc. 84 at 1). The case was removed to this Court on
that same date. (Doc. 82 at 3). Plaintiff provides that on
September 1, 2017, it directed its foreign service expert to
commence service on Defendant, pursuant to the Hague
Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil and Commercial Matters
(“Hague Convention”). (Doc. 84 at 1).
Plaintiff's expert then transmitted the Second Amended
Complaint and the Summons of the Maricopa County Superior
Court to the South Korean Central Authority to serve on
Defendant. (Doc. 80-1). Since that time, however, Plaintiff
has filed both a Third Amended Complaint, (Doc. 33), and a
Fourth Amended Complaint, (Doc. 72). Plaintiff has not served
either of these amended complaints on Defendant, nor has it
sent Defendant a federal summons. (Doc. 82 at 3-4). On March
5, 2018, Plaintiff filed a Certificate of Service to notify
the Court that it had perfected service on Defendant on
November 22, 2017. (Doc. 80-1); (Doc. 82 at 2).
Motion to Dismiss
moves to dismiss the claims against it on two grounds. First,
Defendant argues that because Plaintiff violated the
Court's prior order by failing to serve Defendant with
the “operative complaint, ” dismissal is
appropriate pursuant to Federal Rule of Civil Procedure
(“Rule”) 41(b). (Doc. 82 at 4-5). Second,
Defendant argues that because Plaintiff failed to serve
Defendant with a federal summons, dismissal is appropriate
under Rule 12(b). (Id. at 5-6).
party must be properly served for the Court to obtain
personal jurisdiction over that party.” Hickory
Travel Sys., Inc. v. TUI AG, 213 F.R.D. 547, 551 (N.D.
Cal. 2003). Rule 12(b)(5) allows a party to move to dismiss
claims against it for insufficient service of process.
Fed.R.Civ.P. 12(b)(5). In order to survive a Rule 12(b)(5)
motion to dismiss, a plaintiff must have complied with the
requirements of Rule 4. See Rajbhandari v. U.S.
Bank, 305 F.R.D. 689, 694 (S.D. Fla. 2015). Accordingly,
a plaintiff must serve a summons with the copy of the
complaint. Fed.R.Civ.P. 4(c)(1). That summons must both name
the court that the defendant is being summoned to and
“state the time which the defendant must appear and
defend.” Fed.R.Civ.P. 4(a)(1). Although normally a
court must dismiss a defendant who remains unserved within 90
days of the complaint being filed, there is an exception for
attempts to serve individuals in a foreign country.
Fed.R.Civ.P. 4(f)(1), (m). Furthermore, when a case is
removed from state to federal court, and “any one or
more of the defendants has not been served with process or in
which the process served proves to be defective, such process
or service may be completed or new process issued in the same
manner as in cases filed in such district court.” 28
U.S.C. § 1448 (2012). This statute allows federal courts
“discretion to give the plaintiff leave to perfect
service or to dismiss the case and force plaintiff to
refile.” Baumeister v. New Mexico Comm'n for
the Blind, 409 F.Supp.2d 1351, 1353 (D. N.M. 2006).
Dismissal for insufficient service of process is disfavored.
See United Food & Commercial Workers Union v. Alpha
Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984);
United States ex rel. Thomas v. Siemens AG, 708
F.Supp.2d 505, 516 (E.D. Pa. 2010); Schmidt v.
Wilbur, 775 F.Supp. 216, 227 (E.D. Mich. 1991).
Therefore, the Ninth Circuit holds “that
‘substantial compliance' with Rule 4's service
requirements is sufficient so long as the opposing party
receives sufficient notice of the complaint.”
Straub v. A P Green, Inc., 38 F.3d 448, 453 (9th
Cir. 1994) (citing Chan v. Soc'y Expeditions,
Inc., 39 F.3d 1398, 1404 (9th Cir. 1994); and then
citing Direct Mail Specialists, Inc. v. Eclat
Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir.
1988)). Finally, “[i]f the plaintiff fails to . . .
comply with . . . a court order, a defendant may move to
dismiss the action or any claims against it.”
first argues that the Court ordered Plaintiff to serve
Defendant “with the operative Complaint in this
case.” (Doc. 82 at 3). Because Plaintiff only served
Defendant with the Second Amended Complaint, Defendant
contends that Plaintiff violated a court order.
(Id.) The Court rejects this argument. The Order
that Defendant refers to does not order Plaintiff to serve
Defendant with the operative complaint. Instead, it grants
Plaintiff an extension to serve all defendants located in
Korea and sets a deadline for Plaintiff to file proof of
service. (Doc. 57 at 3). Because the Court never ordered
Plaintiff to serve Defendant with the “operative
complaint, ” the Court rejects Defendant's argument
that it is appropriate to dismiss the claims against it on
next argues that the Court should dismiss the claims against
it because “Plaintiff attempted service . . . with an
outdated and inoperative Second Amended Complaint, and a
Summons from a court in which there is no active case.”
(Doc. 82 at 5). For these reasons, Defendant argues,
Plaintiff did not substantially comply with Rule 4. (Doc. 86
at 4). In response, Plaintiff argues that “[t]he letter
and intent of service of process have been met” because
Defendant had notice of this action and was able to hire
legal counsel and file the pending Motion to Dismiss. (Doc.
84 at 2). The Court agrees with the Defendant that Plaintiff
did not substantially comply with Rule 4, but will
nonetheless deny the motion to dismiss.
failing to include the federal court summons, Plaintiff has
not complied with four of the seven requirements of Rule
4(a)(1). By virtue of being a state court summons, this
summons fails to “name the court[, ] . . . state the
time within which the defendant must appear and defend[, ] .
. . be signed by the clerk[, ] . . . [or] bear the
court's seal.” Fed.R.Civ.P. 4(a)(1)(A), (D), (F),
(G). The summons thus falls short of “substantial
compliance” with the dictates of Rule 4. E.g.,
Ghosh v. City of Berkeley, No. C-14-2922 MMC, 2015
WL 153209, at *2 (N.D. Cal. Jan. 12, 2015) (holding service
of process insufficient for lack of clerk's signature)
(citing Ayres v. Jacobs & Crumplar, P.A., 99
F.3d 565, 569-70 (3d Cir. 1996); and then citing Taylor
v. Logic 20/20 Inc., No. C13- 1199JLR, 2014 WL 1379603,
at *3 (W.D. Wash. Apr. 8, 2014)).
Plaintiff's service of process is insufficient, the Court
retains discretion in deciding whether to dismiss the action
or to quash service. S.J. v. Issaquah Sch. Dist. No.
411, 470 F.3d 1288, 1293 (9th Cir. 2006) (citing
Stevens v. Sec. Pac. Nat'l Bank, 538 F.2d 1387,
1389 (9th Cir. 1976)). On this score, the Court is mindful
that Plaintiff successfully went through the required steps
to effect service under the Hague Convention and that, at the
time Plaintiff transmitted the documents to its foreign
service expert, Plaintiff had not yet filed its Third Amended
Complaint. (Doc. 84 at 1). Furthermore, Defendant has not
claimed, and the record does not show, that the defective
summons prejudiced it in any way. United Food, 736
F.2d at 1382 (stating that dismissal under Rule 4 “is
generally not justified absent a showing of
prejudice”). Importantly, the subsequent amendments to
the complaint did not alter the allegations Plaintiff made
against Defendant in its Second Amended Complaint.
(Compare Doc. 81-1, with Doc. 33,
and Doc. 72). Therefore, although the summons was
defective, it still informed Defendant of the nature of the
claims against it. In such a situation, dismissal is
disfavored in order to promote the policy-codified in the
Rules-of disposing of cases on their merits. Fed.R.Civ.P. 1
(“These rules . . . . should be construed . . . to
secure the just, speedy, and inexpensive determination of
every action and proceeding.”); see also
Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 1083 (4th ed. 2017).
Because “the interplay of § 1448 and Rule 4(m)
actually encourages courts to direct plaintiffs to perfect
service, ” the proper remedy is not to dismiss
Plaintiff's claims against Defendant, but instead to
order Plaintiff to re-serve Defendant with federal process.
Baumeister, 409 F.Supp.2d at 1354-55 (citing
Denver & Rio Grande W. R.R. v. Union Pac. R.R.,
119 F.3d 847, 848-49 (10th Cir. 1997)); see also Hickory
Travel Sys., 213 F.R.D. at 553 (stating that the court
should retain jurisdiction “so long as there is a
chance that the plaintiff still could accomplish
service” citing Umbenhauer v. Woog, 969 F.2d
25, 30 (3d Cir. 1992)).