Opinion
6:22-cv-00312-MK
08-24-2023
KELLY A. BARNETT, Plaintiff, v. CAROLYN HIGHT MAXWELL, Defendant.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, (HE / HIM) UNITED STATES MAGISTRATE JUDGE
Plaintiff Kelly A. Barnett, proceeding pro se, brings this cause of action against Defendant Carolyn Hight Maxwell. Compl., ECF No. 1. Defendant moves to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P 12(B)(2), B(4) and B(5). ECF No. 21. For the following reasons, Defendant's motion should be DENIED.
BACKGROUND
Plaintiff filed this negligence and breach of contract action against Defendant on February 28, 2022. ECF No. 1. After Plaintiff's repeated unsuccessful attempts to personally serve Defendant, this Court issued a March 20, 2023 opinion and order permitting Plaintiff to serve Defendant by publishing copies of summons in The Register Guard in Eugene, Oregon and The New Haven Register in New Haven, Connecticut once per week for four consecutive weeks as specified in Or. R. Civ. P. 7 D(6)(a)(i). ECF No. 17. That opinion also details Plaintiff's attempts to personally serve Defendant prior to the Court allowing service by publication.
Following the Court's order, Plaintiff filed a May 22, 2023 proof of service evidencing that Plaintiff had published summons in the required publications for four consecutive weeks. ECF No. 19. The summons which Plaintiff published was the one issued by the Court at the time Plaintiff filed her action. ECF No. 3. It included the case caption and number, the defendant's full name and last known address, and a direction that “within 21 days after service.. .you must serve on the plaintiff an answer to the attached complaint or a motion under [Rule 12].” ECF No. 19. The final publication in The Register Guard was made April 27, 2023 and the final publication in The New Haven Register was made on May 3, 2023. ECF No. 19.
On May 3, 2023, Defendant filed a notice of appearance. ECF No. 18. The notice expressly stated that it was made without waiving the defenses of lack of personal jurisdiction or improper service of process. Id. Several weeks later, Defendant filed this motion to dismiss arguing that Plaintiff failed to comply with all the requirements for service by publication and the Court therefore lacks personal jurisdiction. Plaintiff then filed an additional proof of service on June 12, 2023 based on service at Defendant's alleged address on June 8, 2023. ECF No. 28.
LEGAL STANDARDS
“A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed.R.Civ.P. 4.” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986), amended, 807 F.2d 1514 (9th Cir. 1987). Rule 4 authorizes several methods of service on an individual:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.Fed. R. Civ. P. 4(e).
As relevant for the service by publication that this Court previously authorized, the Oregon Rules of Civil Procedure provide:
a published summons must also contain a summary statement of the object of the complaint and the demand for relief, and the notice required in subsection C(3) of this rule must state: “The motion or answer or reply must be given to the court clerk or administrator within 30 days of the date of first publication specified herein along with the required filing fee.” The published summons must also contain the date of the first publication of the summons.Or. R. Civ. P. 7 D(6)(a)(i).
“Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint.” United Food & Com. Workers Union v. Alpha Beta Co., 736 F.2d 1371 (9th Cir. 1984). In addition, the Court is “generally more solicitous of the rights of pro se litigants, particularly when technical jurisdictional requirements are involved.” Borzeka v. Heckler, 739 F.2d 444, 448 (9th Cir. 1984).
DISCUSSION
A. Waiver
Plaintiff first argues that Defendant's motion is moot because she waived any objection based on improper service and personal jurisdiction by filing a notice of appearance without simultaneously filing an answer or Rule 12 motion. Pl.'s Resp. 5, ECF No. 26. A party who enters a general appearance or files a responsive pleading that fails to dispute personal jurisdiction “waive[s] any defect in service or personal jurisdiction.” Benny, 799 F.2d at 492. A general appearance is “an overt act by which the party comes into court and submits to the jurisdiction of the court” by “manifest[ing] a clear purpose to defend.” Id. A filing does not waive a personal jurisdiction defense when it is “best viewed as a holding maneuver while counsel consider how to proceed” and particularly where it includes a statement that it does not waive any defenses. See id. at 492-93; see also, e.g.,W. Institutional Rev. Bd., Inc. v. Jenkins, 2018 WL 1811364, at *3 (W.D. Wash. Apr. 17, 2018) (“a defendant's notice of appearance prior to filing a motion to dismiss does not constitute a waiver of personal jurisdiction”); Rhodes v. Biomet, Inc., 2020 WL 1955308, at *2 (C.D. Cal. Jan. 22, 2020) (“the fact that the [Defense] counsel filed a notice of appearance and joined in stipulations to extend time to answer the complaint does not waive personal jurisdiction”); Coe v. Philips Oral Healthcare Inc., 2014 WL585858, *2 (W.D. Wash. Feb. 14, 2014) (defendant's entry of a notice of appearance before filing a motion to dismiss did not constitute a waiver of personal jurisdiction objections). Because a notice of appearance does not waive personal jurisdiction and improper service defenses, and because Defendant's appearance at issue here explicitly stated that it was not a waiver of such defenses, Defendant did not waive these defenses and her motion to dismiss is not moot.
B. Service of Process
Having established that Defendant adequately preserved her personal jurisdiction and insufficient service of process defenses, the Court turns to the merits of Defendant's motion. Defendant's argument is straightforward: because the summons Plaintiff published did not include all the required elements of Or. R. Civ. P. 7 D(6)(a)(i), Defendant was never properly served and this Court lacks jurisdiction over her. Plaintiff does not appear to contest that the published summons was not in compliance with the rule, but argues that dismissal based on a pro se Plaintiff's defective service is unwarranted. She also argues that dismissal is improper because Defendant has since been served on June 8, 2023. Because the Court agrees with Plaintiff as to the first point, it does not reach the question of whether the June 8, 2023 service was proper.
While Defendant cited Rule 12(b)(5), she does not address any arguments to the manner of service, only the form of the published summons. To the extent that Defendant did move for dismissal pursuant to Rule 12(b)(5) despite the lack of substantive argument on the issue, the motion is denied because the Court explicitly authorized service by publication on March 20, 2023, ECF No. 17, and there is no dispute that Plaintiff published summons as ordered. ECF No. 19. The only dispute is whether the content of that summons was defective, which is properly the subject of a Rule 12(b)(4) motion, not a Rule 12(b)(5) motion. See § 1353 Motions to Dismiss- Insufficiency of Process and Service of Process, 5B Fed. Prac. & Proc. Civ. § 1353 (3d ed.) (explaining that an objection under Rule 12(b)(4) “concerns the form of the process” while a Rule 12(b)(5) motion “is the proper vehicle for challenging the mode of delivery or the lack of delivery).
In support of her argument that dismissal is inappropriate even if the summons were not in complete compliance with the rule, Plaintiff cites United Food, 736 F.2d 1371. In United Food, the Ninth Circuit evaluated whether to dismiss a case for insufficient process when the summons stated that the defendant had ten days to answer the complaint-rather than the twenty days allowed under Rule 12-and therefore did not comply with Rule 4. id. at 1382. The Court explained that “Rule 4 is a flexible rule that should be liberally construed so long as the party received sufficient notice of the complaint.” id. It explained that summons which, for example, fail to name all the defendants or specify the incorrect time for filing the answer, do not warrant dismissal absent a showing of prejudice. id. In addition, the Court explained that a defendant's appearance “should be enough to prevent any technical error in form from invalidating the process.” id., quoting 4 C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure: Civil § 1088.
Just as in United Food, the technical defects in the summons Plaintiff published do not warrant dismissal. The first defect pertains to the time within which Defendant had to respond; the summons stated that Defendant must answer within 21 days, while the Oregon rule governing service by publication allows for 30 days from the date of first publication. This is precisely the kind of defect which the Ninth Circuit held did not warrant dismissal without a showing of prejudice. United Food, 736 F.2d at 1382. Defendant has made no such showing here. The second defect pertains to the failure of the summons to contain a “summary statement of the object of the complaint and the demand for relief.” Again, this is a defect in the form of the summons only, and Defendant has failed to show prejudice. Finally, as in United Food, the appearance of Defendant in this action is sufficient to prevent these technical errors from invalidating the process.
In sum, particularly in light of Plaintiff's pro se status, the Court should not dismiss this action based on technical errors in the form of process.2Plaintiff's motion should be denied. Because the Court finds Plaintiff's service by publication was sufficient under Rule 4, it does not reach the issue of whether Plaintiff's subsequent June 8, 2023 service was also adequate.
RECOMMENDATION
For the reasons above, Defendant's Motion to Dismiss (ECF No. 21) should be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).