United States District Court, D. Nevada
PHILIP M. PRO, District Judge.
Presently before the Court is Defendant The Vons Companies, Inc.'s ("Vons") Motion to Dismiss (Doc. #10), filed on November 21, 2013. Plaintiff David Lawrence Wilson ("Wilson") filed an Opposition (Doc. #13) on December 2, 2013, and Vons filed a Reply (Doc. #14) on December 6, 2013. Wilson also filed a Surreply (Doc. #16) on December 30, 2013.
Also before the Court is Wilson's Motion to Add Safeway as a Defendant (Doc. #22), filed on January 13, 2014. Vons filed an Opposition (Doc. #24) on January 28, 2014. Wilson filed a Reply (Doc. #26) on February 11, 2014.
Also before the Court is Wilson's Motion to Add Walmart as a Defendant (Doc. #23), filed on January 27, 2014. Vons filed an Opposition (Doc. #25) on February 7, 2014. Wilson filed a Reply (Doc. #27) on February 24, 2014.
On April 21, 2014, the Court conducted a hearing regarding the foregoing motions.
Wilson alleges that on February 10, 2011, he bit down on a piece of metal in some ice cream he purchased at a Walmart store. (First Am. Compl. ["Am. Compl."] (Doc. #4) at 2.) Wilson further alleges the piece of metal damaged his teeth, which required him to have a tooth surgically extracted. (Id. at 2-3.) Although he purchased the ice cream from Walmart, Wilson alleges that Defendant Vons distributes the ice cream to Walmart. (Id. at 1.) Wilson further alleges the ice cream was manufactured by Defendant Lucerne Foods, Inc. ("Lucerne"), and that the defect in the ice cream occurred in the manufacturing process. (Id.) Wilson asserts against Vons, Safeway, Lucerne, and Bellevue Ice Cream Plant ("Bellevue") a claim of products liability due to the alleged manufacturing defect. (Id. at 1-2.)
Magistrate Judge Leen screened Wilson's Amended Complaint and recommended Wilson's claims against Safeway and Bellevue be dismissed for failure to state a claim. (Order (Doc. #5) at 4.) The Court affirmed, dismissing Wilson's claims against Safeway and Bellevue. (Order (Doc. #7) at 1.) Additionally, although Wilson named Walmart as a defendant in his original Complaint, Wilson removed Walmart as a defendant in the Amended Complaint's caption and does not allege claims against Walmart as he did in his original Complaint. However, the Amended Complaint states Walmart sold the ice cream that injured Wilson and cites the general rule that sellers and retailers may be liable for injuries caused by a defective product. (Am. Compl. at 1.)
On November 1, 2013, the United States Marshal's Service served a copy of Wilson's Summons and Amended Complaint upon a woman named Penny Dietz ("Dietz") at Vons's corporate headquarters in California. (Process Receipt & Return (Doc. #8).) Vons now moves to dismiss, arguing Vons was not properly served with process and that Wilson fails to state a claim upon which relief can be granted. Wilson moves to add Safeway and Walmart as defendants.
II. VONS'S MOTION TO DISMISS (Doc. #10)
Federal Rule of Civil Procedure 12(b)(5) provides for the dismissal of a complaint due to insufficient service of process. Under Rule 4(m), if a defendant is not properly served within 120 days after the complaint is filed, the Court "must dismiss the action without prejudice against that defendant or order that service be made within a specified time." When service of process is challenged, the plaintiff bears the burden of establishing that service was valid under Rule 4. Brockmeyer v. May , 383 F.3d 798, 801 (9th Cir. 2004).
A corporation may be served either "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process, " or in the manner prescribed by the state law in which the district court is located or where service is made. Fed.R.Civ.P. 4(h); 4(e)(1). Under the Nevada Rules of Civil Procedure, if the suit is against a corporation formed under Nevada law or registered to do business in Nevada, service may be accomplished by serving a registered agent or officer of the corporation. Nev. R. Civ. P. 4(d)(1). Alternatively, a corporation may be served by delivering a copy of the summons and complaint to the Nevada Secretary of State if service cannot be accomplished on a registered agent or officer of the corporation. Id.
Wilson has failed to meet his burden of showing he properly served Vons under Rule 4, Nevada law, or California law within 120 days. Although the United States Marshals served a copy of the Summons and Wilson's Amended Complaint on Dietz at Vons's headquarters, there is nothing in the record establishing that Dietz is an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process on behalf of Vons. Wilson could, and should, have served Vons via its registered agent in Nevada, The Prentice-Hall Corporation System, Nevada Inc. ("Prentice-Hall"). Although Wilson argues in his Surreply (Doc. #16) that Prentice-Hall is not listed on the Nevada Secretary of State website as a registered agent of Vons, Vons attaches to its Motion a printout from the Secretary of State website with the relevant information about Prentice-Hall. Further, although Wilson argues the only way to serve Vons is at its corporate headquarters in California, Wilson does not present any argument or legal ...