Opinion
CV-24-00452-PHX-DLR
07-25-2024
Pamela D More, Plaintiff, v. Mayo Clinic, et al., Defendants.
ORDER
Douglas L. Rayes, Senior United States District Judge
At issue is a motion filed by Plaintiff Pamela More, who is self-represented, asking the Court to accept as sufficient her prior notices of service indicating that she served two of the Defendants via email. (Doc. 16.)
Ms. More filed this action on March 1, 2024, against Defendants Mayo Clinic (which the Court will refer to as “Mayo Clinic Minnesota” because the complaint alleges it is in Minnesota), a Mayo Clinic Hospital located in Phoenix (which the Court will refer to as “Mayo Clinic Phoenix”), and Dr. Rachel Lindor, a physician at Mayo Clinic Phoenix. (Doc. 1.) The complaint accuses Defendants of violating 42 U.S.C. § 18116, a provision of the Patient Protection and Affordable Care Act that prohibits discrimination under any health program or activity that receives federal funding. Ms. More alleges that she presented in the emergency room with various symptoms but was given substandard treatment because of her gender.
On April 29, 2024, Ms. More filed a notice of service as to Mayo Clinic Minnesota. (Doc. 12.) This notice states:
Mayo only accepts service by email. I was previously instructed by Mayo local Counsel to serve only them (and only via email). Accordingly, I first served them in this matter via email, but I receivedan email this week saying the previous lawyer was no longer with the firm, and, further, they (at least as far as they currently understood) were not assigned to this case, and did not know who was.
In the alternative, I uncovered the email address I had previously been provided by my process server for Mayo Clinic Minnesota, and so served them directly (also via email, as previously instructed).
I have asked Mayo Clinic Minnesota to provide me with the identity and email of their local counsel, so that I can serve them directly, as well.(Id. at 1.) The notice does not attach these alleged communications from counsel for Mayo Clinic Minnesota. But it attaches an email from Ms. More to legaldepounit@mayo.edu in which Ms. More attached PDF copies of the complaint and of the Court's standard order regarding meeting and conferring before the filing of certain motions under Federal Rule of Civil Procedure 12. (Id. at 3-13.)
On May 6, 2024, the Court issued an order finding that Ms. More had not properly served Defendants. The Court identified for Ms. More the relevant rules to consult for instructions on serving a summons and complaint and encouraged her review the Handbook for Self-Represented Litigants. The Court also directed Ms. More either to serve all three Defendants with the summons and complaint and file proof thereof or to otherwise show good cause for her failure to do so by no later than May 30, 2024. (Doc. 13.)
On May 23, 2024, Ms. More filed a response to the Court's order. (Doc. 14.) The response states:
I have consulted once again with my process service (ASAP Service in Arizona). ASAP's representative, Samantha . . ., confirmed with Mayo Clinic that both Mayo locations -Arizona and Minnesota - only accept service via email. Samantha also confirmed with Mayo the correct email addresses for both Arizona and Minnesota service.
Accordingly, I have emailed the following to each party (copies of each email attached).(Id. at 1.) The response appends emails from Ms. More to legaldepounit@mayo.edu and arzlegaldpt@mayo.edu, each of which attaches (among other things) PDF copies of the summons and complaint. (Id. at 3-20.)
On May 31, 2024, Ms. More filed another notice, this time appending a letter from Samatha Forbush, Officer Manager for ASAP Serve LLC, in which Ms. Forbush states:
I have spoken to the legal departments of the Mayo Clinics in Arizona and Minnesota. I was advised that service of process can only be accepted via email.
For the Mayo Clinic in Arizona, the email provided for service of process was: arzlegaldept@mayo.edu and legaldepounit@mayo.edu.
This information was provided to Pamela More.(Doc. 15.) Ms. Forbush's letter does not explain why her office provided these email addresses to Ms. More when Ms. Forbush's office was evidently retained by Ms. More to effectuate service of process. Indeed, Federal Rule Civil Procedure 4(c)(2) generally prohibits a party to a case from being the person who effectuates service of process. This is why parties to litigation often hire process servers for this task.
Finally, on June 13, 2024, Ms. More filed the motion at issue. (Doc. 16.) In it, Ms. More reiterates what she told the Court in her prior notices. She also notes that, in a separate lawsuit she filed against these same Defendants two years ago before Judge Liburdi, counsel for Mayo Clinic Phoenix and Mayo Clinic Minnesota agreed to accept service on behalf of their clients via email. Ms. More argues that the Court should permit her to do the same in this case. Alternatively, Ms. More asks the Court for additional time to serve Defendants. (Id. at 2-3.)
The Court lacks jurisdiction over parties who have not been properly served. See Omni Capital Intern, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). Federal Rule of Civil Procedure 4 governs service of process. The plaintiff is responsible for serving each defendant with a summons and a copy of the complaint within 90 days after the complaint is filed unless the Court extends the time to do so. Fed.R.Civ.P. 4(c)(1), (m). “Any person who is at least 18 years old and not a party may serve a summons and complaint.” Id. at (c)(2) (emphasis added). Rule 4(e) details the ways in which individuals located within the judicial district may be served. And Rule 4(h) does the same for corporations, partnerships, and other associations.
Ms. More. has not properly effectuated service of process for three reasons. First, service by email is not among the ways in which individuals or corporations may be served under Rules 4(e) and 4(h). Second, the notices Ms. More has filed thus far indicate that she personally emailed summonses and copies of the complaint to Mayo Clinic Phoenix and Mayo Clinic Minnesota. But, as a party to this case, Ms. More is not among those who are authorized by Rule 4(c)(2) to effectuate service of process. And third, Ms. More has filed nothing with the Court indicating that she has attempted to serve Dr. Lindor, let alone in a manner authorized by Rule 4(e). Although Dr. Lindor is alleged to be a physician working at Mayo Clinic Phoenix, Ms. More has chosen to name Dr. Lindor as a separate defendant. She therefore must serve Dr. Lindor separately.
Ms. More contends that unnamed representatives for Mayo Clinic Phoenix and Mayo Clinic Minnesota have said that these defendants will only accept service of process by email. It is true that parties can agree to accept service in a manner not specified by the rules. See Howard Bank v. Compu-Link Corp., 472 F.Supp.3d 267, 275-76 (D.Md. 2020). But Ms. More's argument is unpersuasive for three reasons. First, she does provide sufficient proof that Mayo Clinic Phoenix and Mayo Clinic Minnesota have agreed to accept service by email. She does not identify who at the respective legal departments for these defendants made these statements, nor does she provide the Court with records of these communications. Instead, she provides a letter-not a sworn declaration or affidavit-from the officer manager for ASAP Serve LLC, claiming that unnamed representatives for Mayo Clinic Phoenix and Mayo Clinic Minnesota have said these defendants will only accept service of process by email. This vague and unsworn letter is insufficient to satisfy the Court that these defendants have consented to service in this manner. Second, Ms. More does not contend that these defendants have agreed to accept service by a party to the case, which is ordinarily not allowed under Rule 4(c)(2). Even if the Court were to assume that Mayo Clinic Phoenix and Mayo Clinic Minnesota have agreed to accept service via email, nothing in the record indicates that they agreed to receive these emails from Ms. More personally. And finally, although it is true that parties can agree to accept service in a manner not contemplated by the rules, the Court is unaware of any binding authority supporting the proposition that a defendant can refuse to accept service that would otherwise be adequate under the governing rules of procedure. Stated differently, even if Mayo Clinic Phoenix and Mayo Clinic Minnesota consent to being served by email, it does not follow that they can refuse to be served in accordance with Rule 4(h), especially when the Court has ordered Ms. More to effectuate service in conformity with those rules.
For these reasons, IT IS ORDERED that Ms. More's motion asking the Court to accept her prior service efforts as sufficient (Doc. 16) is DENIED.
IT IS FURTHER ORDERED that Ms. More has until August 26, 2024, in which to serve all three Defendants in a manner that complies with Federal Rule of Civil Procedure 4, and to file proof thereof with the Court. If Ms. More fails to properly serve Defendants by August 26, 2024, this action will be dismissed under Rule 4(m).