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Jones v. Bank of America NA

United States District Court, D. Arizona

July 10, 2019

James Jones, Plaintiff,
v.
Bank of America NA, et al., Defendants.

          ORDER

          Honorable Susan M. Brnovich, United States District Judge

         Pending before the Court are three motions to dismiss filed by Defendant Country Wide Inspection Services (“Defendant” or “CWIS”). The first motion was filed on February 5, 2019 and seeks to dismiss Plaintiff's Amended Complaint pursuant to Fed.R.Civ.P. 4, 12(b)(6), and 12(b)(4).[1] (Doc. 50). Plaintiff James Jones filed an opposition. (Doc. 61). CWIS then filed a second motion on March 29, 2019, requesting a ruling on the previous motion and seeking immediate dismissal. (Doc. 64). Plaintiff also filed an opposition to the second motion. (Doc. 65). CWIS then filed another motion to dismiss on July 26, 2019 (Doc. 78), to which Plaintiff filed a Response (Doc. 79).

         BACKGROUND

         On November 6, 2017, Plaintiff filed a Complaint against multiple defendants, including CWIS. That complaint was dismissed and an Amended Complaint (“FAC”) was filed on January 26, 2018 with court approval. Plaintiff's claims are based on alleged violations of the Fair Debt Collection Practices Act (the “FDCPA”) and the Truth in Lending Act (the “TILA”).

         On August 2, 2018, the Court issued an order granting Plaintiff's request for service by the United States Marshals Service (the “Marshals”) 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 Marshals with an incorrect address, preventing the Marshals from effecting service on CWIS, which the Marshals reported on September 7, 2018. (Doc. 12).

         On September 18, 2018, Plaintiff requested another service package so that he could correct CWIS's address, (Doc. 15), and the Court granted his request on October 1, 2018, (Doc. 18). The Clerk of Court sent the service packet to Plaintiff on the same day. Instead of returning the packet to the Marshals, it appears that Plaintiff then attempted service by mailing a copy of the summons and FAC to CWIS at both a Phoenix, Arizona address and a Colorado Springs, Colorado address via certified mail with return receipt requested. (Doc. 23). The FAC and Summons sent to the Phoenix address were returned due to a wrong address. (Doc. 23 at 9). The FAC and Summons sent to the Colorado Springs address were delivered and signed for by “E Murten.” (Doc. 23 at 7). They were not, however, addressed to any specific person, officer, or agent.

         On October 25, 2018, Defendant Bank of America filed a motion to dismiss requesting dismissal in part for failure to serve process. (Doc. 20). On December 28, 2018, this Court issued an order (based on similar facts to the facts above) finding “that service of process failed because it was not complete[d] by a non-party, certified mail is not an acceptable form of service, and the summons and complaint were not mailed to a person authorized to accept service.” (Doc. 34 at 4). The Court quashed the service and gave Plaintiff an opportunity to properly serve Bank of America. (Doc. 34 at 4-5). Plaintiff then moved on January 3, 2019, for another service packet to serve all defendants, including CWIS, (Doc. 39), and the Court granted that motion on February 13, 2019, (Doc. 54). The Clerk of Court received the packet from Plaintiff on February 20, 2019. The Summons and Complaint were served on “Carolyn Ramagos, CEO” of “Country Wide Inspection Services” on May 22, 2019. (Doc. 73 at 3).

         DISCUSSION

         I. Legal Standards

         A. Service of Process

         Federal Rule of Civil Procedure 12(b)(5) allows a party to move to dismiss claims against it for insufficient service of process. The serving party bears the burden of establishing the validity of service. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004).

         Service must be accomplished by an adult who is not a party to the case. See Fed. R. Civ. P. 4(c)(2). Under 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[.]” “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, No. 06-CV-2454 WQH (LSP), 2007 WL 1518341, at *3 (S.D. Cal. May 22, 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.”)).

         In cases involving plaintiffs proceeding in forma pauperis, the United States Marshals Service, upon order of the Court, are authorized to serve the summons and the complaint. See 28 U.S.C. § 1915(d); see also Boudette v. Barnett, 923 F.2d 754, 757 (9th Cir. 1991). A pro se plaintiff proceeding in forma pauperis is entitled to rely on the Marshals for service, and such plaintiff's action should not be dismissed for failure to effect service because of the Marshals' failure to perform their duties. Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). However, it remains plaintiffs' responsibility to provide the Marshals with accurate and sufficient information to effect service. Allen v. Comm'r of Ariz. State Prison, No. CV-13-08048-PHX-GMS, 2014 WL 2435685, at *3 (D. Ariz. May 30, 2014).

         Under Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” In deciding whether to dismiss a case or extend the time period for service under Rule 4(m), the court employs a two-step analysis. Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007). First, if there is a showing of good cause for the delay, the court must extend the time period. Id. Second, if there is no showing of good cause, the court has discretion to either dismiss without prejudice or extend the time period. Id. “District courts have broad discretion to extend time for service under Rule 4(m).” Id. at 1041. “Because pro se litigants must rely on the Marshal for service, delays in service attributable to the Marshal automatically constitute good cause ...


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