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 Dynamic Change, Inc. Am. Comp.
¶ 8. ECF 9. In a February 5, 2018 Opinion & Order, I
granted Plaintiff's motion for an order of default
against Leske, but I denied the motion as to Dynamic Change,
Inc. for failure to show adequate service of process. Feb. 5,
2018 Op. at 1. ECF 8. In a June 6, 2018 Opinion & Order,
I denied Plaintiff's second Motion for an Order of
Default as to Dynamic Change, Inc. again because Plaintiff
failed to show adequate service of process. June 6, 2018 Op.
at 1. ECF 14. Plaintiff once again moves for a default order
pursuant to Federal Rule of Civil Procedure (FRCP) 55(a) as
to Dynamic Change, Inc. Because the motion was initially
filed with inadequate support, I ordered Plaintiff to file a
Memorandum of Law in support of the motion. Having now
considered the entire record, I grant the motion for an order
of default as to Dynamic Change, Inc.
55(a) requires the entry of default when “a party
against whom 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).
Plaintiff asserts that Dynamic Change, Inc. has been properly
served and an entry of default is proper because Dynamic
Change, Inc. has failed to appear or defend. Plaintiff
contends that Dynamic Change, Inc. is evading service and
ignoring the legal process despite being made aware of the
pending lawsuit. Plaintiff supports the motion with his own
declaration, a declaration of his counsel, Kate Suisman, and
an affidavit of a process server.
must be served, if in a judicial district of the United
States, in the manner prescribed by FRCP 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)(A)
& (B). Under FRCP 4(e)(1), an individual may be served by
following state law for serving a summons in the state where
the district court is located or where service is made.
Fed.R.Civ.P. 4(e)(1). A case must be dismissed if Defendant
has not been served within ninety days of the action being
filed. Fed.R.Civ.P. 4(m). However, an exception arises if the
plaintiff can show “good cause” for failing to
perfect service within the time limit. Id.
concedes that he did not perfect service upon an officer of
Dynamic Change, Inc., or any other agent of Dynamic Change,
Inc. authorized to receive service of process under FRCP
4(h)(1)(B). Pl.'s Sept. 7, 2018 Mem. of Law ¶ 6. ECF
17. Because Plaintiff was unable to perfect service under
FRCP 4(h)(1)(B), I look to whether service of process was
perfected under FRCP 4(h)(1)(A) in the manner prescribed by
FRCP 4(e)(1). Because this Court is in Oregon and Plaintiff
attempted service in both Oregon and Washington, I look at
both the Oregon Rules of Civil Procedure (ORCP) and the
Revised Code of Washington (RCW).
Oregon Rules of Civil Procedure
7D(3)(D) governs service of process upon a corporation.
Generally, service of process must comply with the primary
service method or one of the four permissible alternatives.
Id. If the method of service does not comply with
one of these requirements, the Court may turn to ORCP 7D(1),
the “catch-all” provision, to determine whether
service has nonetheless been perfected. Or. R. Civ. P. 7D(1).
Primary Service Method
Oregon, the primary method of service on a corporation is
personal or office service upon a registered agent, an
officer, or a director of the corporation, or personal
service upon any clerk on duty in the office of a registered
agent. Or. R. Civ. P. 7D(3)(b)(i). For personal service to be
completed, true copies of the summons and complaint must be
delivered to the person to be served. Or. R. Civ. P.
7D(2)(a). Plaintiff concedes that he has not perfected
personal service upon a registered agent, officer, or
director of Dynamic Change, Inc. or upon a clerk on duty in
the office of a registered agent.
service requires that, if the person to be served maintains
an office for the conduct of business, service may be made by
leaving true copies of the summons and complaint at the
office during normal business hours with the person who is
apparently in charge. Or. R. Civ. P. 7D(2)(c). Further, to
complete office service, the plaintiff must send true copies
of each to the defendant by certified mail to the
“dwelling house or usual place of abode or
defendant's place of business or any other place under
the circumstances that is most reasonably calculated to
apprise the defendant of the existence and pendency of the
record suggests that Dynamic Change, Inc. has maintained, or
represented that it has maintained, several office locations.
Various addresses appear in the record. First, 18414 SE 15th
Street, Vancouver, Washington 98683 (“the 15th Street
address”) is listed as the address for Dynamic Change,
Inc. on the Oregon Secretary of State website. Suisman Mar.
7, 2018 Decl. in Supp. of Mot. to Extend ¶ 3. ECF 10-1.
Plaintiff also found this address listed for Dynamic Change,
Inc. on angieslist.com on September 4, 2018. Suisman Sept. 7,
2018 Decl. ¶ 8. ECF 17-1. Delivery was attempted at the
15th Street address in November of 2017 by a process server
but the individuals at the address had not heard of any of
the people or companies involved in this case. Id.
at ¶ 12. Because the 15th Street address was not the
office of Dynamic Change Inc., office service could not be
completed at this address.
1316 Single Tree Drive in Vancouver, Washington (“the
Single Tree address”) is the address listed on the
Washington Secretary of State's website for Dynamic
Change, Inc.'s registered agent. Suisman Mar. 7, 2018
Decl. in Supp. of Mot. To Extend ¶ 3. The service
provider attempted service at this address on November 28,
2017 by leaving the documents with Judy Bealer, Leske's
mother-in-law. Aff. of Process Server, Ex. 3. ECF 17-3.
Plaintiff declares that this address is not only the home of
Leske but is also the office of Dynamic Change, Inc.
Villegas-Rubi Sept. 7, 2018 Decl. ¶ 5. ECF 17-2. He
declares that Bealer worked for Dynamic Change, Inc. from the
Single Tree address on more than one occasion. Id.
at ¶ 6-8. However, there is no evidence in the record
that Bealer was an “on duty ...