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Brinkman v. Ong

United States District Court, D. Oregon, Portland Division

March 23, 2017

TANYA BRINKMAN and DAN BRINKMAN, Plaintiffs,
v.
CHRISTOPHER ONG, et al., Defendants.

          OPINION AND ORDER

          MICHAEL W. MOSMAN Chief United States District Judge

         This matter comes before me on Defendants' Motions to Dismiss [53] and Plaintiffs' Motion for Alternative Service [55]. For the reasons set forth below, I GRANT Defendants' Motion to Dismiss and DISMISS the case without prejudice. I also DENY Plaintiffs' Motion for Alternative Service.

         BACKGROUND

         On April 22, 2016, Tanya and Dan Brinkman (“the Brinkmans”) brought suit against Christopher Ong, Greg Wiseman, Arbor Creek Apartments, AMC Properties, Bittner-Hahs Law Firm, and Aaron Matusick. The Brinkmans eventually dismissed four of these parties [27], leaving only Arbor Creek Apartments and AMC Properties as named defendants in the suit.

         Since the Brinkmans initiated this action, the Court has informed them numerous times of the need to serve their Complaint and Summons in accordance with the requirements under Federal Rule of Civil Procedure 4. Most recently, I DENIED [40] the Brinkmans' Motion for Reconsideration of Order [37] for failure to properly effectuate service. During that telephone proceeding, I informed the Brinkmans of the steps they needed to take in order to properly effectuate service and move forward with their case. I also told them they had until November 4, 2016, to provide evidence of proper service or I would dismiss the case pursuant to Federal Rule of Civil Procedure (“Rule”) 4(m).

         In early November 2016, the Brinkmans filed Returns of Service [49-52], showing that they had served their Complaint and Summons upon National Registered Agents, Incorporated and/or CT Corporation System. Shortly thereafter, JSP Arbor I LLC (“JSP”) and Apartment Management Consultants, L.L.C. (“Apartment Management Consultants”) specially appeared and moved to dismiss the Complaint for insufficiency of service pursuant to Rule 12(b)(5). JSP and Apartment Management Consultants also moved to dismiss the Complaint for failure to state a claim pursuant to Rule 12(b)(6) or, in the alternative, to strike portions of the Complaint and make a more definite statement of the claims. On December 9, 2016, the Brinkmans responded to the Motion to Dismiss and moved for alternative service.

         DISCUSSION

         I. Local Rule 7-1

         As a preliminary matter, the Brinkmans assert that JSP and Apartment Management Consultants failed to confer with them prior to filing their Motion to Dismiss in violation of Local Rule 7-1. Under this rule, parties must make a “good faith effort through personal or telephone conferences to resolve the dispute.” D. Or. R. 7-1(a)(1)(A). If parties fail to comply with this requirement, the Court has discretion to deny the motion. D. Or. R. 7-1(a)(3).

         JSP and Apartment Management Consultants dispute that they failed to make a good faith effort to consult with the Brinkmans regarding the Motion to Dismiss. In his declaration, counsel for JSP and Apartment Management Consultants states that he attempted to email and call the Brinkmans prior to filing the motion. Counsel also provided emails that appear to confirm these attempts. It seems, however, that counsel had an incorrect phone number for the Brinkmans. Although it is unfortunate that the parties were unable to confer with each other prior to the motion being filed, I find that counsel for JSP and Apartment Management Consultants made a good faith effort to do so. In any event, failure to comply with this rule does not require me to deny the motion.

         II. Motion to Dismiss for Insufficient Service

         Rule 4 lays out the requirements for properly serving a defendant in federal court. Fed.R.Civ.P. 4. A plaintiff may serve a corporate entity by delivering a copy of the summons and complaint to “an officer, a managing or general agent, or any other agent authorized by appointment of law to receive service of process” or by a method authorized by state law in the state where the district court is located. Fed.R.Civ.P. 4(e), (h). In Oregon, a plaintiff may also serve a corporate entity by mailing the summons and complaint to the entity's registered agent or last registered office, as shown by the records on file with the Oregon Secretary of State. Or. R. Civ. P. 7(D)(3)(b)(ii)(C). The summons must bear the name of the court in which the suit is pending and the name of the party to whom it is directed. Fed.R.Civ.P. 4(a).

         Where a plaintiff fails to properly serve a defendant in accordance with Rule 4, the district court has no personal jurisdiction over that defendant. Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982). Before answering the complaint, the defendant may move to dismiss the case for insufficient service of process. Fed.R.Civ.P. 12(b)(5). But, if the defendant voluntarily appears by filing a responsive pleading without raising the issue of insufficient service, the defendant will have waived the defect. Jackson, 682 F.2d at 1347.

         Here, the Brinkmans served their Summons and Complaint on National Registered Agents and/or CT Corporation System, the supposed registered agents of Arbor Creek Apartments and AMC, LLC. In reviewing the records from the Oregon Secretary of State, however, there is no business entity of record by the name of Arbor Creek Apartments. Moreover, AMC, LLC is a registered business entity out of Mount Angel, Oregon, whose registered agent is Richard Arritola. ...


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