United States District Court, D. Arizona
G. Campbell, Senior United States District Judge
Plaintiff Vivian Epps sued CVS Health Corporation
(“CVS”), alleging that she was injured at CVS
retail store #2963 in Phoenix, Arizona, on January 23, 2017.
Doc. 1. Germann Dobson CVS, LLC (“Germann”) has
filed a motion to dismiss the complaint pursuant to Federal
Rules of Civil Procedure 12(b)(5), 12(b)(6), and 10(b). Doc.
14. Plaintiff responded to the motion to dismiss (Doc. 18),
and Germann moved under Rule 12(e) for a more definite
statement of the response (Doc. 19). Plaintiff responded to
the motion for a more definite statement (Doc. 20), and
Germann asked the Court to strike the response (Doc. 21).
is not named as a defendant, is not a party, and has not
sought to become a party. Although Germann asserts that it
owns and operates the store where Plaintiff allegedly was
injured, Plaintiff is the master of her complaint and makes
clear that she intends to sue CVS, not Germann. See
Docs. 18, 20. As a non-party, Germann has no standing to
challenge the sufficiency of Plaintiff's complaint or her
service of process. Additionally, even though it is invalid
because Germann is not a party, Germann's motion for a
more definite statement is improper. See Coleman v.
Calvert Cty., No. GJH-15-920, 2016 WL 206294, at *1 (D.
Md. Jan. 15, 2016).
Plaintiff Has Not Properly Served CVS.
filed her complaint against CVS on April 25, 2018. Doc. 1. On
May 10, 2018, Plaintiff filed an affidavit stating that she
served the summons on Larry Merlo, CVS's president and
CEO, by certified mail with signature required. Doc. 7;
see Doc. 18 at 9. On May 14, 2018, Plaintiff filed a
return receipt showing that an agent of CVS received and
accepted service by signature dated May 8, 2018. Doc. 8. To
date, CVS has not appeared or responded to the complaint.
federal court is without personal jurisdiction over a
defendant unless the defendant has been served in accordance
with Fed.R.Civ.P. 4.” Benny v. Pipes, 799 F.2d
489, 492 (9th Cir. 1986). Rule 4(c)(1) requires Plaintiff to
serve the summons and a copy of the complaint.
Plaintiff's proof of service states only that she served
the summons. See Docs. 7, 8.
it is unclear whether Plaintiff may complete service of
process in this case by certified mail. Rule 4(h)(1)(A)
allows service to be made on a corporation in accordance with
Rule 4(e)(1), which in turn allows service in accordance with
applicable state rules, and Rule 4.2(c) of the Arizona Rules
of Civil Procedure allows service by certified mail on some
out-of-state defendants. It is not clear whether the Arizona
service-by-mail rule applies to out-of-state corporations.
See Arizona Rule 4.2(h) (requiring service by
“delivering a copy of the summons and the
pleading”). Because this issue has not been raised or
briefed, the Court will not address it further.
Extension of Time to Serve.
90-day deadline for service has expired. See Fed. R.
Civ. P. 4(m). The Court has discretion under Rule 4(m) to
extend the time for service, with or without a showing of
good cause. Efaw v. Williams, 473 F.3d 1038, 1041
(9th Cir. 2007); United States v. 2, 164 Watches,
366 F.3d 767, 772 (9th Cir. 2004). The Court will grant
Plaintiff an additional 45 days to complete
proper service on Defendant CVS. Plaintiff is warned that her
failure to properly serve CVS will result in dismissal of
is directed to familiarize herself with the Federal Rules of
Civil Procedure and Local Rules for the District of Arizona,
both of which can be found on the Court's website at
www.azd.uscourts.gov. A copy of the Court's
Local Rules of Civil Procedure may also be obtained from the
Plaintiff fails to prosecute this action or to comply with
the rules or any Court order, the Court may dismiss the
action with prejudice pursuant to Federal Rule of Civil
Procedure 41(b). See Ferdik v. Bonzelet, 963 F.2d
1258, 1260-61 (9th Cir.1992) (holding that the district court
did not abuse its discretion in dismissing a pro se
plaintiffs complaint for failing to comply with a court
order). IT IS ORDERED:
1. Germann Dobson CVS, LLC's motion to dismiss (Doc. 14),
motion for a more definite statement (Doc. 19), and motion to