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Sullivan v. Breitenstein

United States District Court, D. Oregon, Portland Division

April 12, 2018

CYRUS ANDREW SULLIVAN Plaintiff,
v.
SCOTT ALLEN BREITENSTEIN Defendant.

          OPINION AND ORDER

          JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE.

         Introduction Self-represented plaintiff Cyras Andrew Sullivan ("Sullivan") seeks monetary and injunctive relief against defendant Scott Allen Breitenstein ("Breitenstein") for alleged trademark and copyright infringement in violation of 15 U.S.C. § 1125 and 17U.S.C. § 501. Before the court is Sullivan's Motion for Substituted Service Authorization ("Motion"). (Pl.'s Mot. for Sub. Service, ECF No. 33, ("Motion").) Since filing his complaint, Sullivan has, through the United States Marshals Service ("Marshals"), repeatedly attempted to effect service on Breitenstein. Sullivan requests that the court consider Breitenstein served, order the Marshals to provide Sullivan with transportation to any hearings in this matter, and order Sullivan's incarceration to remain in this district until this case is resolved. For the reasons set forth below, the Motion is denied.

         Background Sullivan filed this suit August 31, 2016, and the court granted him in forma pauperis ("IFP") status, (ECF No. 2, 4) placing the responsibility of serving the defendant on the Marshals. Fed.R.Civ.P. ("Rule") 4(c)(3). On September 23, 2016, the court issued a summons for Breitenstein and forwarded all relevant documents, specifically the summons and complaint, to the Marshals for service. (ECF No. 6.) An internet search revealed Breitenstein's last known address to be on Bidleman Street in Dayton, Ohio. (ECF No. 7.) On September 28, 2016, the documents were forwarded by regular mail to the Southern District of Ohio for service via Federal Express. (Id.) On September 30, 2016, the package was returned to the Marshals marked "Return to Sender - Moved." (Id.) No further attempts to serve Breitenstein were made at that time, and return of service was entered in the record as "unexecuted" on December 7, 2016. (Id.)

         On January 18, 2017, the court issued an Order to Show Cause requiring Sullivan to demonstrate in writing why the case should not be dismissed for lack of service.[1] (ECF No. 12.) After a show cause hearing on January 27, 2017, the court granted Sullivan an extension of time to serve Breitenstein at a second address on Murnma Avenue in Dayton, Ohio. (ECF No. 17.) The Marshals sent the complaint and summons to the alternate address by certified mail, but the documents were returned on January 30, 2017, marked "Return to Sender, NoSuch Number, Unable to Forward." (ECF No. 18.) Return of service was again entered in the record as "unexecuted" on February 9, 2017. (Id.)

         On March 10, 2017, the court issued a second Order to Show Cause, requiring Sullivan to appear at a hearing scheduled for March 27, 2017, and to articulate in writing whether good cause existed to dismiss the action for lack of service. (ECF No. 19.) On March 21, 2017, Sullivan moved to postpone the hearing, citing his recent arrest and incarceration in an unrelated criminal matter, and requested postponement until after a re-trial in his criminal case. (ECF No. 20.) The court granted Sullivan's motion, and postponed the hearing. (ECF No. 21.) Sullivan's criminal case was delayed, and the court rescheduled the show-cause hearing in this case for July 21, 2017. (ECF Nos. 23-4, 25-6.)

         On March 24, 2017, the Marshals again attempted service by mail at Mumma Avenue in Dayton, Ohio. (ECF No. 30.) The documents were sent by certified mail, and the United States Postal Service's electronic tracking record indicates that the package was delivered and left with "an individual at the address" on April 7, 2017. (Id.) Return of service was entered in the record as "executed" on June 12, 2017. (Id.) Based on "the apparent service of defendant Breitenstein, " the court struck as moot the July show-cause hearing. (ECF No. 31.)

         On June 13, 2017, however, an amended summons was issued and all proposed exhibits forwarded to the Marshals with a request to effect personal service on Breitenstein at the Bidleman Street address. (ECF No. 29.) On June 21, 2017, personal service was attempted at the Bidleman address, but no one was home. (Id.) On June 23, 2017, an unnamed party answered the door, but claimed Breitenstein did not live at that address and refused service. (Id.) On June 29, 2017, service was again refused at the Bidleman Street address. The Marshal process server subsequently tried "another address, " and was told that Breitenstein "[d]oesn't live there." (Id.) Return of service was entered in the record as "unexecuted" on July 17, 2017. (ECF No. 32.)

         According to Sullivan's Motion, Breitenstein received by service the summons, complaint, and proposed exhibits from "a third party process server, " Mobley Reporting, in May 2017 through Breitenstein's wife, who accepted and signed for the documents at the Bidleman Street address. (Motion, 2.) Sullivan claims that, after service was executed, his agent attempted to provide the court with proof of service, but "the clerk advised ... that the Summons that had been given to the process server in Ohio lacked the proper court seal on it." (Id.) Consequently, Sullivan asserts he relied on the Marshals to serve Breitenstein "the Summons with seal, " but the Marshals' efforts were unsuccessful. (Id.) Sullivan provides no supporting documentation for these statements.

         After many failed attempts to serve Breitenstein, Sullivan filed this Motion on October 13, 2017. (ECF No. 33.)

         legal Standard

         "A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under [Federal Rule of Civil Procedure ("Rule")] 4." Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988) (citing Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982). Rule 4 is flexible and should be liberally construed when the defendant receives adequate notice of the complaint against him. United Food & Commercial Workers Union, locals 197, 373, 428, 588, 775, 839, 870, 1119, 1179, and 1532 v. Alpha Beta Co., 736 F.2d 1325, 1326 (9th Cir. 1985). However, "neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction" unless the plaintiff substantially complies with the requirements of Rule 4. Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (citing Jackson, 682 F.2d at 1347).

         Proper service on an individual is governed by Rule 4(e). Under Rule 4(e), service may be effectuated by "following state law... in the state where the district court is located or where service is made, " Fed.R.Civ.P. 4(e)(1) (2017) (emphasis added). Substituted service - leaving a copy of the summons and complaint at "the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there" - is also adequate under Rule 4(e). Fed. R. Crv. P. 4(e)(2)(B).

         Discussion

         Sullivan asserts Breitenstein was effectively served through Mobley Reporting's alleged substituted service in May 2017 because the relevant documents were delivered to the Bidleman Street address in Dayton, Ohio, and Breitenstein's wife allegedly accepted and signed for the documents on his behalf. (Motion, 3.) Alternatively, Sullivan argues that even if substituted service was not effectuated, the court should consider Breitenstein served because Breitenstein is ...


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