United States District Court, D. Oregon
DALE MAXIMILIANO ROLLER, an individual, a/k/a Dale Maximiliano Roller Ramirez, Plaintiff,
ALFREDO NUNEZ HERRERA, an individual; and CHURCHILL LEONARD, PC, a/k/a Churchill Leonard Lawyers, an Oregon Professional Corporation, Defendants.
Maximiliano Roller Pro Se
L. Lis Nena Cook ATER WYNNE, LLP Attorneys for Defendants
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE
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.
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. 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.
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.
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.
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.
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
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)
permits a district court to grant an extension of time to
serve the complaint after the [90-day] ...