United States District Court, D. Arizona
Honorable Susan M. Brnovich, United States District Judge
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). (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).
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”).
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).
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.
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).
Service of Process
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).
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
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
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 ...