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Villegas-Rubi v. Dynamic Change, Inc.

United States District Court, D. Oregon

October 26, 2018

ARTURO VILLEGAS-RUBI, an individual, Plaintiff,
v.
DYNAMIC CHANGE, INC., a Washington business corporation and TREVOR LESKE, an individual, Defendants.

          OPINION & ORDER

          Marco A. Hernandez United States District Judge.

         Plaintiff 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.

         FRCP 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.

         STANDARDS

         Corporations 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.

         DISCUSSION

         Plaintiff 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).

         I. Oregon Rules of Civil Procedure

         ORCP 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).

         A. Primary Service Method

         In 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.

         Office 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 action.” Id.

         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.

         Second, 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 ...


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