United States District Court, D. Oregon
OPINION & ORDER
A. HERNANDEZ, UNITED STATES DISTRICT JUDGE
Arturo Villegas-Rubi brings this wage-related action against
Defendants Dynamic Change, Inc. and Trevor Leske, who
allegedly owns and operates the corporate Defendant. Am.
Compl. ¶¶ 8. Plaintiff moves for an Order of
Default pursuant to Federal Rule of Civil Procedure 55(a) as
to Dynamic Change, Inc. I deny the motion.
55(a) requires the entry of default when "a party
against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise[.]" Fed.R.Civ.P. 55(a).
Although Rule 55(a) uses mandatory language, the Court's
responsibility to enter a default order does not arise unless
the party against whom the default order is sought has been
properly served with process. See Beverly
O'Connell, Karen Stevenson, & Virginia Phillips,
Fed. Civil Proc. Before Trial ¶ 6:36, 6-8 (The
Rutter Group 2018) ("Ordinarily, entry of default is not
automatic. Plaintiff must present proof to the court clerk
(by affidavit or declaration) that the defendant is 'in
default' - i.e., that defendant has been served with
summons and complaint . . . and has failed to respond within
the time permitted by the Federal Rules"); Cascade
Pension Tr. v. Bates Indus., Inc., No. 6:16-cv-01068-AA,
2017 WL 1172104, at *1 (D. Or. Mar. 28, 2017) (granting Rule
55(a) motion for entry of default after determining that
service was proper and the defendant never appeared).
supports the motion with the Declaration of Kate Suisman,
Plaintiff's counsel. ECF 13. Suisman states that she
attempted to serve Dynamic Change, Inc. by mail and via a
process server but was unable to complete service. Suisman
Apr. 16, 2018 Decl. ¶ 3. The rest of her Declaration
recites her attempt at service by mail but provides no
further description of any attempt to serve the Amended
Complaint on Dynamic Change, Inc. by process
states that on March 8, 2018, she attempted to serve Dynamic
Change, Inc. by serving the Oregon Secretary of State in the
manner described in Oregon Revised Statute § (O.R.S.)
60.121. Id. ¶ 4. Proof of service on the
Secretary of State is attached to her Declaration. Suisman
Apr. 16, 2018 Decl., Ex. 1, ECF 13-1. Suisman also attaches
further evidence of her compliance with service requirements
in the form of certified mail sent to Dynamic Change,
Inc.'s registered agent's address and to the mailing
address of Dynamic Change, Inc., also on March 8, 2018.
Id., Ex. 2, ECF 13-2. The certified mail to the
registered agent's address was returned as
"unclaimed." Id. The certified mail to the
mailing address of the company was returned as
"refused." Id.; see also Suisman Decl.
¶¶ 5-7 (explaining requirements of O.R.S. 60.121,
the sending of the summons and complaint to the registered
agent and company mailing address, and the return of the
certified mail). Without more, Suisman then asserts that
Dynamic Change has failed to plead and otherwise defend
within the time prescribed by the Federal Rules of Civil
Procedure. Id. ¶ 8.
either domestic or foreign, must be served, if in a judicial
district of the United States, in the manner prescribed by
Rule 4(e)(1) for serving an individual, or by delivering a
copy of the summons and complaint to (1) an officer; (2) a
managing or general agent; or (3) any other agent authorized
by appointment or by law to receive service of process, and
if the agent is one authorized by statute and the statute
requires, by also mailing a copy to the defendant.
Fed.R.Civ.P. 4(h)(1). Because Plaintiff did not deliver a
copy of the summons and complaint to an officer of Dynamic
Change, Inc., a managing or general agent of Dynamic Change,
Inc., or any other agent of Dynamic Change, Inc. authorized
to receive service of process, Plaintiff did not perfect
service under Rule 4(h)(1)(B).
Rule 4(e)(1), service may be made consistent with Rule
4(h)(1)(A) by following state law for the state where the
district is located or where service is made. Fed.R.Civ.P.
4(e)(1). Because this Court is in Oregon and Plaintiff
attempted service in Oregon, I look at the Oregon Rules of
Civil Procedure. Under Oregon law, service on a corporation
is governed by Oregon Rule of Civil Procedure 7D(3)(b). The
primary method is personal or office service upon (1) a
registered agent of the corporation; (2) an officer of the
corporation; or (3) a director of the corporation. Or. R.
Civ. P. 7D(3)(b)(i). The primary method also includes
personal service upon any clerk on duty in the office of a
registered agent. Id. Personal service requires the
delivery of a true copy of the summons and a true copy of the
complaint to the person to be served. Or. R. Civ. P.
7D(2)(a). If the person to be served maintains an office for
the conduct of business, office service may be made by
leaving true copies of the summons and complaint at that
office during normal working hours with the person who is
apparently in charge. Or. R. Civ. P. 7D(2)(c). Additionally,
with office service, the plaintiff is required to mail by
first class mail, as soon as reasonably possible, true copies
of the summons and complaint to the defendant at one of
several places as specified in the rule. Id.
Suisman's Declaration shows no attempted personal or
office service upon a registered agent, officer, or director
of Dynamic Change, Inc. It also shows no attempted personal
service upon any clerk on duty in the office of a registered
agent. Id. Thus, no service of Dynamic Change, Inc.
was attempted under Oregon rules for primary service upon a
rules for service on corporations include four alternatives
to the primary service method. Or. R. Civ. P. 7D(3)(b)(ii).
One of those alternatives allows service "upon the
Secretary of State in the manner provided in ORS 60.121 or
60.731." Or. R. Civ. P. 7D(3)(b)(ii)(D). Suisman's
Declaration establishes that Plaintiff's attempted
service on Dynamic Change, Inc. was pursuant to this
alternative service method. Suisman Apr. 16, 2018 Decl.
¶ 4 ("On March 8, 2018, I attempted to serve
Defendant Dynamic Change Inc. by serving the Oregon Secretary
of State in the manner described in ORS 60.121: Service on a
alternative methods are available only "[i]f a
registered agent, officer, or director cannot be found in the
county where the action is filed[.]" Or. R. Civ. P.
7D(3)(b)(ii). The plain language of the rule establishes that
the lack of a registered agent, officer, or director in the
county where the action is filed is a prerequisite to
invoking any of the court alternative methods allowed by Rule
7D(3)(b)(ii). See Rosado v. Roman, No.
3:16-cv-00784-SI, 2017 WL 3473177, at *1 (D. Or. Aug. 11,
2017) ("As applied to district courts in Oregon, to
invoke any of the alternative methods, a plaintiff must first
show that a registered agent, officer, or director could not
be found within the county the court is located in.").
Court is located in Multnomah County. The Oregon Secretary of
State's website lists Leske as the registered agent of
Dynamic Change, Inc., with an address of 10424 SE Cherry
Blossom Drive, Suite M, Portland, Oregon 97216. This address is
located in Multnomah County. Because the office of Dynamic
Change's registered agent is located in Multnomah County,
Plaintiff was required to serve Dynamic Change, Inc. under
one of the primary service methods set forth in Rule
7D(3)(b)(i). As stated above, Plaintiff failed to
properly effect service under the primary service methods.
Rules of Civil Procedure include a "catch-all"
provision found in Rule 7D(1). Gudmundson v.
Horowitz, No. 03-1038-KI, 2005 WL 599999, at *4 (D. Or.
Mar. 9, 2005) (referring to 7D(1) as a
"'catch-all' rule"). The rule provides that
service is to occur "in any manner reasonably
calculated, under all the circumstances, to apprise the
defendant of the existence and pendency of the action and to
afford a reasonable opportunity to appear and defend."
Or. R. Civ. P. 7D(1). When the method of service does not
comply with one of the methods "'specifically
permitted for use upon the particular defendant by ORCP
7(D)(3), and accomplished in accordance with ORCP 7D(2)[,
]'" which creates a presumption of adequate service,
then "the court must determine whether service of
summons complied with the reasonable notice standard set
forth in ORCP 7D(1)." Johnston v. ADT LLC, No.
3:15-cv-01396-SI, 2015 WL 7722415, at *4 (D. Or. Nov. 30,
2015) (quoting Baker v. Foy, 310 Or. 221, 228, 797
P.2d 349, 354 (1990)). The assessment looks at the
"totality of the circumstances":
"ORCP 7D(1) focuses not on the defendant's
subjective notice but, instead, on whether the
plaintiff's conduct was objectively, reasonably
calculated to achieve the necessary end. That is, regardless
of whether the defendant ever actually received notice, were
the plaintiff[']s efforts to effect service reasonably
calculated, under the totality of the circumstances then
known to the plaintiff, to apprise the defendant of the
pendency of the action."
Capsugel Belgium NV v. Bright Pharma Caps., Inc.,
No. 3:15-cv-00321-PK, 2015 WL 7185463, at *4 (D. Or. Nov. 13,
2015) (quoting Davis Wright Tremaine, LLP v. Menken,
181 Or.App. 332, 339, 45 P.3d 983, 986-87 (2002)). The court
focuses on what the plaintiff and his or her process server
knew at the time of the purported service. Johnston,
2015 WL 7722415, at *5. "[C]ourts must also consider a
plaintiff[']s efforts to ensure service was proper both
before and after the attempted service." Capsugel
Belgium, 2015 WL 71854653, at *4; see also Id.
(noting that the Oregon Court of Appeals has stated that
"the reasonable notice standard is satisfied where
notice is effectuated at the place where the defendant
represents an intent to receive notices of important
information") (citing Gallogly v. Calhoun, 126
Or.App. 366, 369, 869 P.2d 346, 348-49 (1994)).
case, Plaintiff makes no argument in support of reasonable
notice under Rule 7D(1). The only attempted service on the
Oregon registered agent was the follow-up certified mail to
the Oregon registered agent's address at 10424 SE Cherry
Blossom Drive as part of service on the Secretary of State
under O.R.S. 60.121 as allowed by Rule 7D(3)(b)(ii)(D). There
was no attempt at personal service on the registered agent.
There was no attempt to serve via regular first-class mail.
The certified mail to both the registered agent's office
and to the mailing address of the corporation, which is