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Phillips v. State Bar of Nevada

United States District Court, D. Nevada

March 16, 2017

DAVID LEE PHILLIPS, Plaintiff,
v.
STATE BAR OF NEVADA, et al., Defendants.

          ORDER

          Gloria M. Navarro, Chief Judge.

         Pending before the Court is the Motion to Dismiss, (ECF No. 25), filed by Defendants State Bar of Nevada and State Bar of Nevada Board of Governors (collectively “Defendants”). Plaintiff David Lee Phillips (“Plaintiff”) filed a Response, (ECF No. 45), and Defendants filed a Reply, (ECF No. 48).[1] For the reasons set forth herein, Defendants' Motion to Dismiss is GRANTED.

         I. BACKGROUND

         On February 26, 2016, Plaintiff filed his Complaint before this Court, alleging various claims of civil rights violations against the Defendants. (Compl., ECF No. 1). Attached to the Complaint, Plaintiff included a “Certificate of Service, ” purporting to have effectuated service by mail. Shortly thereafter, Plaintiff filed an Amended Complaint, which likewise indicated service by mail. (Am. Compl., ECF No. 17). On June 3, 2016, Defendants filed a Motion to Dismiss pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure (“FRCP”), asserting that Plaintiff failed to provide sufficient service of process.

         II. LEGAL STANDARD

         FRCP 12(b)(5) authorizes a defendant to move for dismissal due to insufficient service of process. Under FRCP 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.” Fed.R.Civ.P. 4(m).

         “[U]nless the procedural requirements of effective service of process have been satisfied, the court lacks personal jurisdiction to act with respect to that defendant at all.” Cambridge Holdings Group v. Federal Ins. Co., 489 F.3d 1356, 1361 (D.C. Cir. 2007). Although Rule 4 is a flexible rule, “without substantial compliance with Rule 4 ‘neither actual notice or simply naming the defendant in the complaint will provide personal jurisdiction.'” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986).

         When a defendant challenges service, the Plaintiff bears the burden of establishing the validity of service under FRCP 4. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). In granting a Rule 12(b)(5) motion, the court may either dismiss the action without prejudice or retain the action and permit the plaintiff to cure the defects. See Fed. R. Civ. P. 4(m); Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir. 1985).

         III. DISCUSSION

         In the instant Motion, Defendants seek dismissal of this case due to Plaintiff's alleged failure to serve Defendants within 90 days of filing the Complaint. (See Mot. to Dismiss 4:2-4). In ruling on this Motion, the Court must evaluate three separate issues: (1) whether Plaintiff failed to adequately serve the Defendants; (2) whether Defendants waived the defense of improper service; and (3) whether any defects in service warrant dismissal of the action.

         1. Improper Service

         Plaintiff argues that Defendants were properly served electronically pursuant to Local Rule 5-4. (See Pl.'s Mot. to Strike 10:3-5). Plaintiff's argument is both legally and factually incorrect. Under Local Rule 5-4, [2] electronic service is insufficient for a summons and complaint, which instead must be served in paper form and in full compliance with the FRCP. Furthermore, both Plaintiff's Complaint and Amended Complaint fail to even identify electronic service as the method of service. Rather, both filings state that Plaintiff attempted service solely by mailing the documents to the State Bar's general address. (Id. 3:5-9). The unilateral mailing of a summons and complaint is insufficient to satisfy the requirements for service.[3] See Fed. R. Civ. P. 4.

         Under FRCP 4(m), Plaintiff had 90 days from the filing of the Complaint to serve Defendants. See Fed. R. Civ. P. 4(m). To date, Plaintiff has failed to allege or file proof of any valid method of service. Accordingly, the Court finds Plaintiff has not met ...


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