United States District Court, D. Nevada
ORDER AND REPORT & RECOMMENDATION
CAM FERENBACH, Magistrate Judge.
This matter involves Tanus Cabinet's breach of contract action against Central Transport and Blue Grace Logistics for damage that occurred to a cosmetic kiosk shipped to the Providence Place Mall. Before the court is Blue Grace's motion to dismiss for defective service of process (#15, #16) and Blue Grace's motion to stay discovery pending the court's ruling on the motion to dismiss (#20). For the reasons stated below, Blue Grace's motion to dismiss should be denied and Blue Grace's motion to stay is denied.
In July 2013, Blue Grace Logistics directed Central Transport to pick up and deliver a cosmetic kiosk to the Providence Place Mall in Providence, Rhode Island. (Pl.'s Opp'n (#17) at 3). When Central Transport arrived at the mall, Central Transport's shipment was refused. ( Id. ) For four days, the kiosk was stored in an unknown location and then discovered in a warehouse in Ohio. ( Id. ) On July 25, 2013, the kiosk arrived at the Providence Place Mall. ( Id. ) It was "completely destroyed." ( Id. ) Litigation ensued.
On November 12, 2013, Tanus filed suit in state court. On December 3, 2013, Tanus erroneously served Blue Grace's registered agent, George Keele of Evilsizor Transportation Service, at 1692 County Road, Minden, Nevada, with a summons and complaint for Central Transport. ( See Summons #1-2). On December 18, 2013, Central Transport received a copy of the summons and complaint in the U.S. Mail; and, on January 13, 2014, Central Transport timely removed the action to federal court. ( See generally Petition for Removal #1); (Statement of Removal #7).
Service was subsequently attempted "numerous" times. (Pl.'s Opp'n (#17) at 5:3). On February 6, 2014, Tanus attempted to properly serve Blue Grace's registered agent, George Keele. However, Tranus's process server may have attempted service at a residence at 1692 Country Club Road, Minden, Nevada rather than 1692 County Road, Minden, Nevada, where George Keele's office is located. In any event, the parties agree that this service attempt failed.
On March 18, 2014, Tanus attempted to serve Blue Grace again ( See Summon #13). However, Tanus served Blue Grace with state, not federal, process. Tanus made no subsequent attempts to serve Blue Grace. On February 3, 2014, Blue Grace filed the instant motion to dismiss. On May 13, 2014, Tanus's 120-day period to serve Blue Grace expired. On May 22, 2014, Blue Grace filed the instant motion to stay discovery.
Blue Grace moves to dismiss Tanus' complaint on two grounds. First, Blue Grace argues that the court lacks personal jurisdiction over Blue Grace because Tanus failed to serve Blue Grace in accordance with the Federal Rules of Civil Procedure as required under 28 U.S.C. § 1448. Second, Blue Grace argues that Tanus's complaint against Blue Grace should be dismissed because Tanus's March 18, 2014 service was untimely under Rule 4(m). Both arguments are addressed below.
I. Whether Service was Defective under 28 U.S.C. § 1448
The first question Blue Grace's motion raises is whether Tanus's complaint should be dismissed for failure to serve Blue Grace in according with 28 U.S.C. § 1448. This statute states:
In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.
Interpreting 28 U.S.C. § 1448, the Ninth Circuit stated that the statue contemplates three separate situations: "(1) where a defendant has not been served at all with state process prior to removal; (2) where a defendant has been served prior to removal but the service has not been perfected in accord with state law at the date of removal; (3) where a defendant has been served prior to removal but the summons contains some formal defect on its face." Beecher v. Wallace, 381 F.2d 372, 372 (9th Cir. 1967).
Citing 28 U.S.C. § 1448 and Beecher, Blue Grace argues that because Central Transport removed the action on January 13, 2014, Tanus was required to serve Blue Grace in accordance with the Federal Rules of Civil Procedure. ( See Def.'s Mot. to Dismiss (#16) at 4:23) ("Service in federal court requires a federal summons."). This is incorrect. As stated by Rule 4 and Beecher, service in federal court may often times be executed in accordance with state law. See, e.g., Fed.R.Civ.P. 4 4(e)(1) (permitting service by publication in federal court as provided by the state law in the state where the court sits). In fact, of the three situations identified by Beecher, only one requires a federal summons in federal court. That situation is "where a defendant has not been served at all with state process prior to removal." Beecher, ...