Opinion
No. CV 07-508-PHX-MHM.
February 19, 2008
ORDER
Currently before the Court is Plaintiff Joanne Daphne Ellis's ("Plaintiff') motion to compel Barton L. Baker ("Baker") to accept service of process. (Dkt. #58). On October 12, 2007, the Court granted Baker's motion to dismiss for lack of jurisdiction, dismissed Plaintiff's amended complaint without prejudice and with leave to file a second amended complaint. (Dkt. #53). On November 1, 2007, Plaintiff filed a second amended complaint that eliminated all original defendants and named only Kevin Ross Johnston ("K. Ross Johnston") and Does 1-20 as Defendants. On November 7, 2007, a summons was issued as to K. Ross Johnston; service of that summons was attempted upon Baker on December 4, 2007, but was returned unexecuted after Baker refused to accept service of process stating that "he no longer represents K. Ross Johnston." (Dkt. #57). Then, on December 4, 2007, Plaintiff filed the instant action to compel Baker to accept service of process on behalf of K. Ross Johnston. (Dkt. #58).
Plaintiff contends that the Court should grant her motion to compel Baker to accept service of process on behalf of K. Ross Johnston because Baker previously represented K. Ross Johnston in a case that is related to the instant action. An agent's authority to accept service may be implied in fact from the surrounding circumstances. Gibbs v. Hawaiian Eugenia Corp., 581 F.Supp. 1269, 1271 (S.D.N.Y. 1984); see also 4A Charles A. Wright Arthur R. Miller, Federal Practice Procedure § 1097, at 84-85 (2d ed. 1987) ("[A]lthough authority to accept process need not be explicit, it must either be express or implied form the type of relationship between defendant and the alleged agent."). However, an attorney does not become an agent for process simply because the attorney previously represented the defendant in an earlier action. U.S. v. Ziegler Bolt Parts Co., 111 F.3d 878, 881 (Fed. Cir. 1997); Grandbouche v. Lovell, 913 F.2d 835 (10th Cir. 1990) (holding that the mere relationship between a defendant and his attorney does not, by itself, convey authority to accept service of process). For an attorney to be considered an agent for process, he or she must have been appointed for that precise task. Santos v. State Farm Fire Cas. Co., 902 F.2d 1092, 1094 (2d Cir. 1990); see also 4A Wright Miller § 1097, at 85-86 ("[D]efendant's attorney probably will not be deemed an agent appointed to receive process absent a factual basis for believing that an appointment of this type has taken place.").
Plaintiff provides the Court with no indication that Baker was granted the authority to accept service of process on behalf of K. Ross Johnston in the instant action. Indeed, although Plaintiff submits as an exhibit the first page of a 2004 affidavit of K. Ross Johnston that states that at that time Baker represented K. Ross Johnston, Plaintiff provides the Court no information to indicate that Baker still represents K. Ross Johnston, let alone that K. Ross Johnston gave Baker the authority, express or implied, to accept service on his behalf. Thus, the Court can not find that Baker presently represents K. Ross Johnston or that he possesses the explicitly or implicit authority to accept service of process on behalf of K. Ross Johnston in the instant action.
In addition, Plaintiff refers to Baker as counsel of record for K. Ross Johnston and requests that the Court not allow Baker to withdraw as such, but Baker has not sought to withdraw, and he is and has never been counsel of record for K. Ross Johnston in the instant action. Baker is counsel of record in this action only to the extent that he was defending himself as one of the original named defendants. However, Plaintiff dismissed Baker as a Defendant in her second amended complaint filed on November 1, 2007. Thus, Baker is neither a party in this action, counsel of record for K. Ross Johnston, nor his agent for purposes of service of process. As such, Plaintiff must either serve K. Ross Johnston himself or an agent of K. Ross Johnston that has been explicitly or implicitly granted the authority to accept service of process on his behalf in the instant action.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's motion to compel (Dkt. #58) is DENIED.