United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN Chief United States District Judge
matter comes before me on Defendants' Motions to Dismiss
 and Plaintiffs' Motion for Alternative Service .
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.
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 , leaving only Arbor
Creek Apartments and AMC Properties as named defendants in
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  the
Brinkmans' Motion for Reconsideration of Order  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).
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.
Local Rule 7-1
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).
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.
Motion to Dismiss for Insufficient Service
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.
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.
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. ...