United States District Court, D. Nevada
M. Navarro, Chief Judge.
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). For the reasons
set forth herein, Defendants' Motion to Dismiss is
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.
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).
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).
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).
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.
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,  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. See Fed. R. Civ. P. 4.
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 ...