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Roller v. Herrera

United States District Court, D. Oregon

June 12, 2018

DALE MAXIMILIANO ROLLER, an individual, a/k/a Dale Maximiliano Roller Ramirez, Plaintiff,
v.
ALFREDO NUNEZ HERRERA, an individual; and CHURCHILL LEONARD, PC, a/k/a Churchill Leonard Lawyers, an Oregon Professional Corporation, Defendants.

          Dale Maximiliano Roller Pro Se

          Daniel L. Lis Nena Cook ATER WYNNE, LLP Attorneys for Defendants

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE

         Pro Se Plaintiff Dale Maximiliano Roller brings claims under the Fair Debt Collection Practices Act and the Oregon Unlawful Trade Practices Act as well as common-law claims for Abuse of Process, Fraud, and Breach of the Duty of Good Faith. Defendants Alfredo Nunez Herrera and Churchill Leonard, PC, now move to dismiss this action under Federal Rule of Civil Procedure 12(b)(5) for ineffective service of process. For the reasons that follow, the Court finds service was ineffective. The Court, however, denies Defendants' Motion to Dismiss and directs Plaintiff to re-serve Defendants within thirty days of this Order.

         BACKGROUND

         Plaintiff proceeds in this action in forma pauperis. Order, ECF 4. Plaintiff filed his Complaint on January 10, 2018, and his First Amended Complaint on January 31, 2018. Compl. ECF 2; Am. Compl., ECF 9. On January 31, 2018, copies of the summonses, complaint, and form USM 285 were forwarded to the U.S. Marshals for service.[1] ECF 8. Plaintiff provided two addresses for Defendant Herrera to the Marshals, including Defendant Herrera's work address as an “alternative” to the primary address provided. Return of Service as to Defendant Herrera (“Herrera Ret. Serv.”), ECF 12. Plaintiff provided one address for Defendant Churchill Leonard, which appears to be its place of business in Salem, OR. Return of Service Defendant Churchill Leonard (“Churchill Leonard Ret. Serv.”), ECF 13. Plaintiff specifically indicated that the Marshals should “serve on David Leonard, Esquire.” Id. On February 9, 2018, the Marshal served the summonses and Amended Complaint via Fed Ex. Id.; Herrera Ret. Serv.

         The Marshal served Defendant Herrera at the work address provided by Plaintiff, a Social Security Office in Salem, Oregon. Herrera Ret. Serv. at 2. The return of service shows that the documents were signed for by L.Nitti, described as “Receptionist/Front Desk.” Id. Defendant Herrera confirms that the documents were delivered to his office via FedEx, but asserts he did not sign for the package. Herrera Decl. ¶ 2, ECF 15. Defendant Herrera also states that “no one in [his] office is an agent authorized by appointment or by law to receive service of process for [him]” and that he has not been personally served or received by first class, certified, registered, or express mailing the summons, complaint, or first amended complaint. Id. at ¶¶ 3-4.

         Defendant Churchill Leonard was served at its place of business. Churchill Leonard Ret. Serv.; Leonard Decl. ¶ 3, ECF 16. As with Defendant Herrera, the documents were signed for by “M.Brooks, ” described as “Receptionist/Front Desk.” Churchill Leonard Ret. Serv. at 2. Defendant Churchill Leonard confirms in a declaration from David Leonard-an attorney, president, and secretary of Defendant Churchill Leonard-that “M.Brooks” is Megan Brooks, an administrative assistant who works for Defendant Churchill Leonard. Leonard Decl. ¶¶ 1, 3. Ms. Brooks is not the registered agent for Defendant Churchill Leonard. Id. at ¶ 2. Nor is she an “officer, managing or general agent, or agent authorized by appointment or by law to receive service of process for Churchill Leonard.” Id. at ¶ 4. Defendant Churchill Leonard's registered agent is “Registered Agent Service Company, LLC.” Id. at ¶ 2. Defendant Churchill Leonard asserts that it has not been personally served or received the summons, complaint, or amended complaint by first class mail or a certified, registered, or express mailing. Id. at ¶ 6.

         On February 15, 2018, defense counsel notified Plaintiff via email that she believed service of process was insufficient. Def. Mot. 3, ECF 14; Cook Decl. Ex. 1 at 1, ECF 17. Counsel offered to waive service instead of filing a motion to dismiss under Rule 12(b)(5). Cook Decl. Ex. 1 at 1. Plaintiff denied Defendants' request for a waiver, and Defendants filed the present motion. Id.

         STANDARDS

         Rule 12(b)(5) allows a defendant to move to dismiss the action where the service of process of a summons and complaint is insufficient. Fed.R.Civ.P. 12(b)(5). It is plaintiff's burden to establish the validity of service of process. Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981) (“When service of process is challenged, the party on whose behalf it is made must bear the burden of establishing its validity.”); Neilson v. Beck, No. CV-94-520-FR, 1994 WL 578465, at *3 (D. Or. Oct. 18, 1994) (“Once a party has challenged the sufficiency of process under Rule 12(b)(5), the party on whose behalf service is made has the burden of establishing its validity.”). The court may consider evidence outside the pleadings in resolving a Rule 12(b)(5) motion. See Lachick v. McMonagle, No. CIV. A. 97-7369, 1998 WL 800325, at *2 (E.D. Pa. Nov. 16, 1998) (“Factual contentions regarding the manner in which service was executed may be made through affidavits, depositions, and oral testimony.”).

         If service is ineffective, the court may dismiss the action or quash the service. “The choice between dismissal and quashing service of process is in the district court's discretion.” Stevens v. Security Pac. Nat'l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976). “Service will ordinarily be quashed and the action preserved where ‘there is a reasonable prospect that plaintiff ultimately will be able to serve defendant properly.'” Bravo v. Cty of San Diego, No. C 12-06460 JSP, 2014 WL 555195, at * 1 (N.D. Cal. Feb. 10, 2014) (citing 5C Wright & Miller, Federal Practice and Procedure § 1354 (1969)). The district court also has the discretion, upon a showing of ‘good cause' to extend the time for service outside of the 90-day period provided for in Rule 4. Fed.R.Civ.P. 4(m); Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2001) (“Rule 4(m)

         explicitly permits a district court to grant an extension of time to serve the complaint after the [90-day] ...


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