Opinion
Case No. 04-4086-JAR.
October 18, 2004
MEMORANDUM AND ORDER CONDITIONALLY GRANTING DEFENDANT'S MOTION TO DISMISS
Defendant moves to dismiss (Doc. 5) this action, for insufficiency of service of process, lack of subject matter jurisdiction, and failure to state a claim. In the alternative, defendant moves for a more definite statement. Plaintiff Lawrence L. Kelly filed this action, pro se, on July 19, 2004. For the following reasons, the Court conditionally grants defendant's motion, and dismisses this action. In the event plaintiff has properly served the defendant on or before November 16, 2004, the Court will set aside this order of dismissal.
Defendant raises other grounds for dismissal, which the Court will entertain in the event this order of dismissal is rescinded.
I. Standard of Review
When a defendant moves to dismiss an action because of insufficiency of service of process, the plaintiff has the burden of proving the validity of service of process. Plaintiff must make a prima facie showing that the court has personal jurisdiction over the defendant. In determining the issues raised in a motion to dismiss, the uncontroverted allegations in plaintiff's complaint are taken as true, and any factual disputes must be resolved in plaintiff's favor. Although plaintiff appears pro se, the court requires that a pro se plaintiff "follow the same rules of procedure that govern other litigants."
Fed. Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992).
Wheaton v. Ahrens, 983 F. Supp. 970, 972 (D. Kan. 1997) (quoting Kennedy v. Freeman, 919 F.2d 126, 128 (10th Cir. 1990)).
Id.
Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
II. Factual Background
Plaintiff filed this action on July 19, 2004, claiming housing discrimination by defendant Oakwood Manor Apartments. Plaintiff resided in the Oakwood Manor Apartments until he was evicted from his apartment on July 15, 2004. Plaintiff claims that defendant harassed him by serving the eviction notice and the "Writ of Restitution and Execution" issued by the Shawnee County District Court, Limited Actions Division. He alleges discrimination based on race and sex.
III. Discussion
Defendant contends that this case should be dismissed for insufficiency of service of process, because there was no service on defendant or defendant's agent. It is undisputed that plaintiff served the attorney who represented defendant in the state court eviction action. Service of process must be effected in accordance with Federal Rule of Civil Procedure 4(h), which states that:
See Doc. 4 and Pl. Compl. at Ex. C.
[S]ervice upon a domestic or foreign corporation or upon a partnership or other unincorporated association that is subject to suit under a common name, and from which a waiver of service has not been obtained and filed, shall be effected . . . in a judicial district of the United States in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.
Subdivision (e)(1) allows for service "pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State." Therefore plaintiff may serve defendant according to Rule 4 or according to Kansas law. Service of process in Kansas is governed by K.S.A. §§ 60-303 and 60-304 and may be made upon:
a domestic or foreign corporation, domestic or foreign limited liability company, domestic or foreign limited partnership, domestic or foreign limited liability partnership or upon a partnership or other unincorporated association, when by law it may be sued as such, (1) by serving an officer, manager, partner or a resident, managing or general agent, or (2) by leaving a copy of the summons and petition at any business office of the defendant with the person having charge thereof, or (3) by serving any agent authorized by appointment or required by law to receive service of process. . . .
Plaintiff has failed his burden of proving proper service, under the federal rule or under Kansas law. Defendant denies that the attorney whom plaintiff served was authorized by appointment or law to receive service of process for defendant in this action. In fact, service of process on an attorney is not effective absent some evidence that the attorney was authorized to accept service on behalf of the party. Plaintiff offers no showing that this attorney was authorized to accept service. Nor does plaintiff show that this attorney was a managing or general agent or officer of the defendant, or that this attorney was required by law to receive service of process. Moreover, plaintiff mailed the summons to the business address of the attorney, not to defendant's business address.
See U.S. v. 51 Pieces of Real Property, Rosewell, N.M., 17 F.3d 1306, 1313 (10th Cir. 1993) (citing Santos v. State Farm Fire Casualty Co., 902 F.2d 1092, 1094 (2nd Cir. 1990) ("[S]ervice of process on an attorney not authorized to accept service for his client is ineffective. . . ."); Ransom v. Brennan, 437 F.2d 513, 518 (5th Cir. 1971) ("[S]ervice of process is not effectual on an attorney solely by reason of his capacity as an attorney.")); see also Arthur v. Litton Loan Serv. LP, 249 F. Supp. 2d 924, 929 (E.D. Tenn. 2002) ("The defendant's attorney is not deemed an agent appointed to receive service of process absent a factual basis for believing that such an appointment by the defendant has occurred.")
Under Rule 4(m) of the Federal Rules of Civil Procedure, if service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court must either dismiss the action without prejudice, or direct that service be effected within a specific time. Having filed this action on July 19, 2004, plaintiff must serve the defendant on or before November 16, 2004. Thus, plaintiff still has time to properly serve defendant in accordance with the rules. Unless plaintiff properly effects service by November 16, 2004, however, this action must be dismissed. Accordingly, this Court will dismiss this action, without prejudice for insufficient service of process. If plaintiff properly serves the defendant, in accordance with the rules, on or before November 16, 2004, the Court will set aside and rescind this order of dismissal. If plaintiff does not properly serve the defendant on or before November 16, 2004, this order of dismissal will remain effective.
IT IS THEREFORE BY THE COURT ORDERED that defendant's Motion to Dismiss for improper service of process is GRANTED.
IT IS ORDERED that this action is DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that this order shall be rescinded if plaintiff properly effects service of process on the defendant on or before November 16, 2004.