Opinion
CV-22-00065-PHX-DLR
10-05-2022
Clayda L Lozoya, Plaintiff, v. National Mobility Eldercare Incorporated, Defendant.
ORDER
Douglas L. Rayes United States District Judge
Plaintiff accuses her former employer of failing to accommodate her disability and of breaching her employment contract. She filed her complaint and an application for a fee waiver on January 12, 2022. (Docs. 1 and 2.) The Court granted Plaintiff's application for a fee waiver on January 14, 2022, but noted that Plaintiff remained responsible for serving the summons and complaint. (Doc. 5.) Under Federal Rule of Civil Procedure 4(m), Plaintiff had 90 days in which to serve Defendant. On April 15, 2022, Plaintiff filed a notice of proof of service. (Doc. 9.) According to that notice, a process server named Erica Johnson personally handed a summons to someone named “Cindy,” who opened the door at Defendant's address at 12:30 pm on April 13, 2022. (Id.)
Defendant has moved to dismiss under Federal Rule of Civil Procedure 12(b)(2), (4), and (5) for lack of personal jurisdiction, insufficient process, and insufficient service of process. (Doc. 10.) Alternatively, Defendant moves to dismiss for failure to state a claim under Rule 12(b)(6). In response, Plaintiff asks the Court not to dismiss, but instead to extend her service deadline so that she may properly serve Defendant. (Doc. 16.) Plaintiff also has moved for leave to amend her complaint. (Doc. 18.)
Defendant is a corporation. It has an appointed Arizona statutory agent-Registered Agents, Inc., 1846 Innovation Park Dr., Oro Valley, Arizona. (Doc. 10-1.) There is no evidence that “Cindy” is an officer, managing or general agent, or other agent authorized by appointment or by law to receive service of process on behalf of Defendant under Federal Rule of Civil Procedure 4(h) or Arizona Rule of Civil Procedure 4.1(i). Defendant therefore has not been properly served. And because “[defendants must be served in accordance with . . . the Federal Rules of Civil Procedure, or there is no personal jurisdiction,” Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982), the Court presently is without personal jurisdiction over Defendant.
But it does not necessary follow that the Court must dismiss the complaint. Under Rule 4(m), “[i]f a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. ” Plaintiff has asked the Court to do the latter, and the Court finds such a result appropriate in this case. As Defendant correctly notes, one of Plaintiff's claims arises under the Americans with Disabilities Act (“ADA”). According to the complaint, Plaintiff received a right-to-sue letter on October 19, 2021, and she had 90 days thereafter in which to file her complaint. Plaintiff filed this action on January 12, 2022-85 days after receiving her right-to-sue letter. The 90-day window for Plaintiff to file a complaint alleging her ADA claim has long since closed, so dismissal of Plaintiff's complaint for insufficient service would be tantamount to a dismissal with prejudice, which is something Rule 4(m) does not require. Such a harsh sanction is unwarranted. The Court instead will give Plaintiff until November 1, 2022 in which to properly serve Defendant and file proof thereof with the Court.
Defendant has alternatively advanced arguments for why Plaintiff's complaint fails to state a claim to relief. But the Court will not prejudge the merits of Plaintiff's complaint until such time as Plaintiff has properly served and the Court has personal jurisdiction over Defendant. In the meantime, the Court will grant Plaintiff's motion for leave to amend. She has not properly served her original complaint, and she now has until November 1, 2022, to do so. It makes little sense to force Plaintiff to serve a version of her complaint that she no longer stands by.
On a final note, Plaintiff is self-represented. The Court has resources available to help self-represented litigants navigate civil litigation in federal court. The Court's public website is https://www.azd.uscourts.gov/. In the upper right corner of the homepage is an option entitled “For those Proceeding Without an Attorney.” If Plaintiff selects that option, she will find links to the Handbook for Self-Represented Litigants, the Federal and Local Rules of Civil Procedure, information on the Federal Court Advice-Only Clinic, among other resources. The Court encourages Plaintiff to avail herself of these resources.
IT IS ORDERED as follows:
1. Plaintiff's motion for leave to amend (Doc. 18) is GRANTED. The Clerk is directed to file the amended complaint Plaintiff has lodged at Doc. 19.
2. Defendant's motion to dismiss (Doc. 10) is GRANTED in modified form. The Court agrees that Defendant has not been properly served, but pursuant to Federal Rule of Civil Procedure 4(m), the Court will order Plaintiff to serve Defendant within a specified time rather than dismiss her complaint.
3. Plaintiff shall have until November 1, 2022 in which to serve Defendant with the summons and amended complaint in accordance with Federal Rule of Civil Procedure 4(h) and file proof thereof with the Court. If Plaintiff fails to serve Defendant within the timeframe specified herein, the Clerk of the Court is directed to dismiss the case without further order.