Opinion
CIV No. 02-1113 LH/LCS-ACE
February 11, 2003
ORDER GRANTING DEFENDANTS' MOTIONS TO QUASH AND REQUIRING PROPER SERVICE
THIS MATTER comes before the Court on two defense motions, both entitled "Motion to Dismiss Pursuant to Fed.R.Civ.P. Rule 12(b)(5) or in the Alternative, Motion to Quash" (Docket Nos. 22 and 24). The Court, having considered the record before it and the briefs of the parties, concludes that the motions are well-taken and shall be granted, resulting in quashing of the service of process currently on file with the Court. In addition, the Court has reviewed Plaintiff's motion for default judgment, premised on Defendants' failure to answer the complaint (Docket No. 26). In light of this Court's decision that none of the Defendants has been properly served, this motion is denied as moot.
The complete title of this motion is "Notice of Motion Default Pursuant to Federal Rules of Civil Procedures, Rule § 55(a)(b-s) Defendants' et al., Failure to Answer Summons and Complaint."
Plaintiff Raymond Lasky ("Lasky") is a pro se litigant. He filed a Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 on September 3, 2002 (Docket No. 1). He sought to effect service of process on defendants, but according to their motions, his service of process was ineffective. Defendants contend that he failed to serve the complaint and summons in the manner required either by the federal rules of procedure or by New Mexico's state civil rules.
The first motion was filed by Mayor David Lansford, William Carey, Chief of Police, Raymond Mondragon, Acting Chief of Police and Curry County Manager, City Police Officers Debra Winnett, Robert Denney and Russell Gould, and by Stan Mixon and David Burress, paramedics. The second motion was filed by Defendants Curry County and Curry Count Deputy Sheriff Reeves. All Defendants state that they were not served with the actual complaint, but rather with a notice of claim. They contend that this does not qualify as proper service under FED.R.CIV.P. 4(e)(2).
Lasky disputes this argument, claiming that Stacy Cook, a party uninterested in this action, over the age of eighteen (18) years of age, personally served the summons and complaint upon Defendants or upon their authorized agents. Lasky presents the Court with no factual materials to support this conclusory statement.
Analysis
In determining whether service of process is proper, courts interpret the rules strictly. A liberal construction of Rule 4 cannot be utilized as a substitute for the plain legal requirement as to the manner in which service of process may be had. Mid-Continent Wood Products, Inc. v. Harris, 936 F.2d 297, 300 (7th Cir. 1991). When service of process is challenged, the party on whose behalf service is made, i.e., the Plaintiff, has the burden to establish its validity. Norlock v. City of Garland, 768 F.2d 654, 656 (5th Cir. 1985). The fact that a plaintiff is appearing pro se in a matter makes no difference, as courts require that pro se parties "follow the same rules of procedure that govern other litigants." See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). Rule 4(c)(1) plainly states that a summons shall be served together with a copy of the complaint. Providing notice to a defendant that a lawsuit has been filed against him is not enough; Rule 4's formal requirements for proper service must also be satisfied. See Ayres v. Jacobs Crumplar, P.A., 99 F.3d 565, 567-68 (3d Cir. 1996) (commenting that actual notice will not, alone, cure an otherwise defective service attempt).
The service of a summons without the copy of the complaint renders service invalid. See Carimi v. Royal Caribbean Cruise Line, Inc., 959 F.2d 1344, 1345-1346 (5th Cir. 1992). I conclude that all Defendants have sufficiently challenged service on the basis that they did not receive the actual complaint.
In response to a challenge to proper service, the plaintiff must usually submit evidence that establishes either: (1) that service was proper; or, (2) an issue of fact requiring an evidentiary hearing to resolve. See generally, Croy v. Skinner, 410 F. Supp. 117, 131 (N.D.Ga., 1976).
Although it is his burden to do so, given the challenge to the service of process on all Defendants, Plaintiff has submitted no evidence to meet either prong of his burden. All he has done is make conclusory statements that service was sufficient, i.e., that the complaint was in fact served. Given the record before the Court, I must agree with Defendants that Lasky's attempt at service simply fails to comply with the requirements of FED.R.CIV. P. 4(e).
Given this conclusion, it is unnecessary to address Defendant's contention that Plaintiff improperly attempted to make substitute service on Ms. West and Ms. Jarousek.
Defendants have asked the Court to either quash the summons or dismiss the case. Courts generally prefer to quash, rather than dismiss, where there is a reasonable prospect that the defendant can be properly served with sufficient process. Pell v. Azar Nut Co., Inc., 711 F.2d 949, 950 n. 2 (10th Cir. 1983). Accordingly, the insufficient service by Plaintiff to date is hereby quashed. The Court notes that more than 120 days have already passed since Plaintiff filed his complaint.
Accordingly, under Rule 4(m), this case is ripe for dismissal. Rather than dismiss the case, the Court will sua sponte extend the time for properly effecting service of process by an additional thirty (30) days from the date that this Order is filed. Thus, Lasky is required to properly serve, in accordance with applicable Court rules, and to file appropriate proofs of service no later than March 12, 2003.
Failure to properly serve and to prove that service has been effective will result in a dismissal of Lasky's complaint as to any unserved defendant.
WHEREFORE, Defendants' Motion to Dismiss Pursuant to Fed.R.Civ.P. Rule 12(b)(5) or in the Alternative, Motion to Quash (Docket No. 22) is granted, resulting in quashing of the insufficient service of process by Plaintiff. Plaintiff is hereby allowed 30 days from the filing of this Order in which to file proof of sufficient service of process on Defendants.
Furthermore, Plaintiff's motion seeking default judgment against Defendants (Doc. No. 26) is denied as being moot.
IT IS SO ORDERED.