Opinion
Civil Action 20-cv-03425-CMA-STV
06-22-2021
CESAR GARCIA, Plaintiff, v. NIETO OIL FIELD SERVICES, LLC, and JOSE NIETO, Defendants.
ORDER DISCHARGING ORDER TO SHOW CAUSE AND VACATING HEARING
CHRISTINE M. ARGUELLO United States District Judge
This matter is before the Court on Plaintiff's Response to Order to Show Cause Regarding Motion for Default Judgment as to Nieto Oil Field Service, LLC. (Doc. # 30.) On June 17, 2021, upon review of the proof of service in this case, the Court ordered Plaintiff to show cause why Plaintiff's Motion for Entry of Default Judgment Pursuant to F.R.C.P. 55(B) Against Defendants Nieto Oil Field Services LLC and Jose Nieto (Doc. # 15) should not be denied for failure to effectuate proper service on the corporate defendant, Nieto Oil Field Service LLC, in compliance with the requirements of Fed.R.Civ.P. 4(h).
Fed. R. Civ. P. 4(h) permits service on a corporation in the manner provided by Rule 4(e)(1), which in turn permits service on an individual in accordance with state law. Colo. R. Civ. P. 4(c) provides that service on a limited liability company may be effectuated by serving the company's manager or that manager's secretary or assistant.
According to the Secretary of State, the registered agent of Nieto Oil Field Service LLC is Jose Alfredo Nieto. The summons for Nieto Oil Field Service LLC was not served directly on Jose Nieto; rather, it was made by substituted service on a “Mylicent Nieto, ” who identified herself as the wife of Jose Nieto. Plaintiff concedes that he does not know whether Ms. Mylicent Nieto works for Mr. Nieto and, therefore, cannot establish that service was proper under Colo. R. Civ. P. 4(c) and Fed.R.Civ.P. 4(h). (Doc. # 30 at 3.) The Court finds that service on Nieto Oil Field Service LLC is insufficient. Accordingly, it is ORDERED as follows:
• the Court's June 17, 2021 Order to Show Cause (Doc. # 29) is DISCHARGED;
• Plaintiff's service of process on Nieto Oil Field Service LLC (Doc. # 11) is hereby QUASHED;
• Plaintiff shall have 30 days within which to properly serve both Defendants-i.e., Nieto Oil Field Service LLC and Jose Nieto individually. See Gregory v. U.S./U.S. Bankr. Ct. for Dist. of Colorado, 942 F.2d 1498, 1500 (10th Cir. 1991) (“The general rule is that ‘when a court finds that service is insufficient but curable, it generally should quash the service and give the plaintiff an opportunity to re-serve the defendant.'”) (quoting Pell v. Azar Nut Co., 711 F.2d 949, 950 n. 2 (10th Cir. 1983));
• the Clerk of Court is directed to vacate the Clerk's Entry of Default as to Nieto Oil Field Service LLC (Doc. # 19); and
• the Motion Hearing set for June 23, 2021, at 9:00 A.M. is hereby VACATED.
Plaintiff named Jose Nieto as a defendant in the Amended Complaint and has moved for default judgment against both Jose Nieto and Nieto Oil Field Service LLC. (Doc. ## 8, 15.) However, no summons directed to Defendant Jose Nieto individually was ever issued or served.