United States District Court, D. Arizona
Honorable Susan M. Brnovich, United States District Judge
before the Court is Defendant Bank of America, N.A.'s
Motion To Dismiss Plaintiff's Amended Complaint Pursuant
to Fed.R.Civ.P. 4, 12(b)(4), And/Or 12(b)(5) or,
Alternatively, To Quash Service of Summons. (Doc. 20).
November 6, 2017, Plaintiff filed a Complaint against
multiple defendants, including Bank of America, N.A.
(“BANA”). That complaint was dismissed and an
Amended Complaint (“FAC”) was filed on January
26, 2018 with court approval. Defendant also filed a motion
for change of judge on that same day. On August 2, 2018, the
Court issued an order denying Plaintiff's motion for
change of judge, but granting his request for service by
United States Marshal pursuant to Fed.R.Civ.P. 4(c)(3). (Doc.
11). Specifically, the Court ordered that the “United
States Marshal shall effect service of the Amended Complaint
(Doc. 8)” and provided Plaintiff with specific
instructions for serving the summons and FAC in this manner.
(Doc. 11 at 2- 3). Plaintiff provided the United States
Marshal with an address but the Marshal was unable to
complete service on BANA, which the Marshal reported on
September 13, 2018. (Doc. 13).
the Marshal was unable to complete service of process,
Plaintiff attempted service by mailing a copy of the summons
and FAC to Bank of America, N.A., 100 N. Tryon St.,
Charlotte, NC 28255. (Doc 20 at Ex. A). It was not mailed to
a specific person. See Id. The materials were mailed
certified with return receipt requested. (Doc. 24 at 4
(citing Ex. A)). On October 7, 2018, someone at the North
Carolina address signed the mail receipt. (Doc. 23 at 2). The
name is hard to read on the receipt but it looks like
“Zaker Ayin”. (Doc. 23 at 6). Plaintiff also sent
a copy of the documents by certified mail to Bank of America
N.A., 10500 NE 8th St, 5th floor, Bellevue, WA, 98004. (Doc.
23 at 1). Again, the letter was not addressed to a specific
person. Receipt for those documents was signed on October 10,
2018, by someone, but again the name is unclear. (Doc. 23 at
service of process is challenged, a plaintiff bears the
burden of showing that the court's personal jurisdiction
is properly exercised.” Grand Canyon Resort Corp.
v. Drive-Yourself Tours, Inc., No. CV-05-03469-PHX-SMM,
2006 WL 1722314, at *2 (D. Ariz. June 22, 2006) (citing
Hirsh v. Blue Cross Blue Shield, 800 F.2d 1474, 1477
(9th Cir. 1986)).
must be accomplished by an adult who is not a party to the
case. See Fed. R. Civ. P. 4(c)(2). Under Federal
Rule 4(h)(1)(B), service of process can be effected on a
foreign corporation through delivery of the summons and
complaint to “an officer, a managing or general agent,
or any other agent authorized by appointment or by law to
receive service of process.” Fed.R.Civ.P. 4(h)(1)(B).
“When serving a corporation, Rule 4(h) requires
personal service on someone at the corporation, and service
by mail to a general corporate address is not
sufficient.” Belle v. Chase Home Fin. LLC,
2007 WL 1518341, at *3 (S.D.Cal.2007) (citing Larsen v.
Mayo Med. Ctr., 218 F.3d 863, 868 (8th Cir. 2000)
(service on corporation was ineffective “because the
summons and complaint were mailed and not personally served
on anyone during the limitations period.”)).
Alternatively, the plaintiff may serve a corporate defendant
in the manner prescribed for serving individuals, which
permits service by following state law of the state where the
district court is located or where service is made.
Fed.R.Civ.P. 4(h)(1)(A); 4(e)(1). Here, the district court is
located in Arizona.
Arizona law, service on a corporation outside of Arizona may
be accomplished as follows:
If a domestic or foreign corporation, partnership, or other
unincorporated association has the legal capacity to be sued
and has not waived service under Rule 4.1(c), it may be
served by delivering a copy of the summons and the pleading
being served to a partner, an officer, a managing or general
agent, or any other agent authorized by appointment or by law
to receive service of process and-if the agent is one
authorized by statute and the statute so requires-by also
mailing a copy of each to the defendant.
Ariz. R. Civ. Pro. 4.2.
first argue that the complaint should be dismissed because
Plaintiff did not follow the Court's order to accomplish
service through the United States Marshal. It is true that
Plaintiff did not accomplish service through the
Marshal's office, but he did try. There is nothing in
that order that would preclude Plaintiff ...