Opinion
Civil Action No. 1:18-cv-02868-DDD-SKC
05-12-2020
PAULETTE HARPER Plaintiff, v. BIOLIFE ENERGY SYSTEMS, INC., et al. Defendants.
ORDER & RECOMMENDATION RE: [#40]
This Order & Recommendation addresses Plaintiff's Motion for Order Declaring Service of Process Complete ("Motion") [#40]. The Motion was referred to the magistrate judge for a determination. [#42.] The Court has considered the Motion and its attachments, the record, and the prevailing law, and concludes that a hearing is not necessary. For the following reasons, the Court DENIES the Motion and RECOMMENDS this case be dismissed for failure to comply with Fed. R. Civ. P. 4(m).
The Court uses "[#___]" to refer to docket entries in CM/ECF.
A. ORDER ON THE MOTION
On April 30, 2020, District Judge Domenico granted the motion to dismiss claims against three co-defendants finding the claims were time-barred. [#39.] Their dismissal left Biolife Energy Systems ("Biolife") and Linkup Media Group of Companies, Inc. ("Linkup") (collectively, "Defendants") as the only remaining Defendants. But Plaintiff has yet to serve these Defendants under Fed. R. Civ. P. 4. On September 6, 2019, the Court issued the following show cause order [#16]:
In addition, the Court observes that this case was filed on 11/6/2018. Under Federal Rule of Civil Procedure 4(m), the deadline for service was 2/4/2019. However, there is no indication that the remaining Defendants have been served, nor has Plaintiff filed a motion for an extension or offered any explanation of good cause as to why service has not been accomplished. Therefore, IT IS FURTHER ORDERED that on or before 10/3/2019, Plaintiff shall show cause in writing why the case should not be dismissed against the Defendants who have not answered or entered an appearance for failure to serve in accordance with F.R.C.P. 4(m).
The Court later found good cause for extending the deadline for Plaintiff to achieve service, discharged the show cause order, and gave Plaintiff until December 26, 2019 to complete service. [#21.] Even still, Plaintiff failed to serve Defendants by the extended deadline. After her counsel failed to appear at a January 21, 2020 Scheduling Conference, the Court issued another show cause order [#31] ordering Plaintiff to show cause as to why this Court should not recommend dismissal, in part, due to Plaintiff's failure to serve Defendants.
Plaintiff filed a written response to the show cause order [#32] and a Motion for Alternate Service [#33]. The Motion for Alternate Service sought an order deeming the Defendants properly served based on Plaintiff's multiple attempts to mail the complaint and summons to Defendants, who are apparently based in New York, and her single attempt to achieve service via a process server. Alternatively, Plaintiff sought an order deeming she achieved service by mailing the summons and complaint to two separate attorneys who previously represented Defendants. Plaintiff cited no rules of procedure, federal or otherwise, or case law that would support the request. The Court denied Plaintiff's request for alternate service due to her failure to exercise due diligence to warrant substituted service, and denied her request to deem service complete. [#35.] On April 21, 2020, the Court subsequently discharged the second order to show cause and made the following observation and order:
Finally, the Court notes that this case is now seventeen months old and has yet to begin discovery. The Court has previously extended Plaintiff's time to serve the remaining Defendants. But even with that extension, Plaintiff is well outside the time for service under Federal Rule of Civil Procedure 4(m). Therefore, it is FURTHER ORDERED that if Plaintiff intends to attempt service on the remaining Defendants, she must file a motion on or before May 1, 2020, demonstrating good cause as to why the deadline for service ought to be extended yet again. If she does not, this Court will recommend that those Defendants be dismissed for failure to serve. (Emphasis added.)[#35.]
Plaintiff then filed the current Motion seeking to have the Court declare service complete on the Defendants [#40]. She alternatively seeks permission, pursuant to Colorado Rule of Civil Procedure 4(f), to serve Biolife and Linkup via attorneys who represented these Defendants in previous actions. [Id. at pp.5-6.] Concerning the former request, she yet again cites no rules of procedure, federal or otherwise, or case law that would permit the Court to simply deem service complete. The Court is unaware of any such authority. Therefore, Plaintiff's request to declare service complete on Defendants is DENIED.
Regarding her request for substituted service, the Federal Rules of Civil Procedure provide, in pertinent part:
(e) ... Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by:
(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;Fed. R. Civ. P. 4(e).
The federal rules contemplate that a corporation may be served in the manner prescribed by Rule 4(e)(1) for serving an individual or by delivering a copy of the summons and complaint to the corporation's officer or agent. Fed. R. Civ. P. 4(h)(1).
Colorado Rule of Civil Procedure 4(f) permits substituted service. When the party attempting service "is unable to accomplish service...the party may file a motion, supported by an affidavit of the person attempting service, for an order for substituted service." Such a motion shall state:
(1) The efforts made to obtain personal service and the reason that personal service could not be obtained, (2) the identity of the person to whom the party wishes to deliver the process, and (3) the address, or last known address of the workplace and residence, if known, of the party upon whom service is to be effected.Colo. R. Civ. P. 4(f). If the court is satisfied that the moving party has used due diligence to attempt personal service, that further attempts to obtain service would prove fruitless, and that "the person to whom delivery of the process is appropriate under the circumstances and reasonably calculated to give actual notice to the party upon whom service is to be effective, it shall":
(1) authorize delivery to be made to the person deemed appropriate for service, and (2) order the process to be mailed to the address(es) of the party to be served by substituted service, as set forth in the motion, on or before the date of delivery. Service shall be complete on the date of delivery to the person deemed appropriate for service.Id.
The Court remains unpersuaded that Plaintiff has exercised due diligence in her attempts to serve these Defendants. As this Court previously stated, Plaintiff's attempts to serve these Defendants by mail, no matter how many times, do not comply with Colorado or New York laws, and therefore, cannot constitute due diligence. The Court is also not persuaded that her attempts at personal service constitute due diligence. According to her materials, after the process server was refused entrance to Defendants' building by security or other personnel working there, her only other attempt was to instruct the process server to return to the same building a second time, which unsurprisingly met with the same result. [#41-3 at p.5.]
To be sure, it appears Plaintiff's counsel knew that the process server would be refused entrance a second time and was merely making a show for the Court as opposed to a true effort to effect service. [#41-3 at pp.3-5.]
There is no indication Plaintiff made any attempts to locate David Annakie's—Defendants' Chief Executive Officer—home address to attempt service there. There is no indication that Plaintiff performed any basic online or other research to determine other places Mr. Annakie might be located to effectuate service upon him; and no evidence the process server attempted to serve him in a parking lot or anywhere else where Mr. Annakie might be found. See Allen v. The Pinery, No. 17-cv-00688-MSK-STV, 2017 WL 3492872 (D. Colo. Aug. 15. 2017) (granting alternative service where the plaintiff attempted service at the defendant's residence, a mailbox center, and church); JDK LLC v. Hodge, No. 15-cv-00494-NYW, 2015 WL 2455504 (D. Colo. May 22, 2015) (finding due diligence where the plaintiff attempted service on the defendants at both business addresses as well as a residential address). Plaintiff settled for ineffectual mailings and a mere two attempts at the same business address. This exhibits a lack of due diligence; the request for substituted service is DENIED.
B. DISMISSAL RECOMMENDATION
This case was initiated on November 6, 2018, is more than 18 months old, and has not proceeded in any meaningful way. Pursuant to Fed. R. Civ. P. 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."
Citing N.Y. Bus. Corp. Law § 306(a) and Colo. R. Civ. P. 4(e), Plaintiff claims she succeeded in serving the Defendants by serving Rosemary Facendo. [See #41 at pp.3-4.] These sections permit service to be made on the corporation's registered agent. N.Y. Bus. Corp. Law § 306(a); Colo. R. Civ. P. 4(e)(4). But according to the materials attached to the Motion, neither Defendant has designated a registered agent, let alone Ms. Facendo in that role. [#41-6 at p.1; #41-7 at p.7.] Rather, Ms. Facendo is listed as the recipient to whom process will be mailed when the New York Secretary of State accepts service on behalf of the entity. [#41-7 at p.1.] And, for purposes of Colorado law, there is no indication that Ms. Facendo is the registered agent or an officer, manager, or member of either entity defendant. See Colo. R. Civ. P. 4(e)(4)(A), (C), (D) (permitting service on an officer, manager of an LLC, or member of an LLC). Further, Ms. Facendo is only listed as a recipient under New York law on behalf of Biolife; nothing has been provided which associates her to Linkup. Consequently, the Defendants appear to remain unserved.
In this Court's previous Order denying Plaintiff's Motion for Alternate Service, the Court ordered Plaintiff to file a motion demonstrating good cause as to why the deadline for service should be extended yet again. [#35 at p.3.] Plaintiff did not file that motion. She instead filed this Motion seeking to have the Court declare service complete or alternatively seeking permission to serve by substituted means. The Court has denied that Motion, as discussed above.
The Court has twice warned Plaintiff that her failure to serve the Defendants could result in the dismissal of her claims against them. [#16 ("Plaintiff shall show cause in writing why the case should not be dismissed against the Defendants who have not answered or entered an appearance for failure to serve in accordance with F.R.C.P. 4(m)."; #35 ("[I]f Plaintiff intends to attempt service on the remaining Defendants, she must file a motion on or before May 1, 2020, demonstrating good cause as to why the deadline for service ought to be extended yet again. If she does not, this Court will recommend that those Defendants be dismissed for failure to serve.").] Because Plaintiff has failed to serve the remaining Defendants and has not offered any good cause for further extending the deadline for service, the Court RECOMMENDS that this case be dismissed pursuant to Fed. R. Civ. P. 4(m).
DATED: May 12, 2020.
BY THE COURT:
/s/_________
S. Kato Crews
United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2) , the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, and waives appellate review of both factual and legal questions. Thomas v. Arn , 474 U.S. 140, 148-53 (1985); Makin v. Colorado Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996).