Opinion
No. CV 07-0589-PHX-RCB.
November 29, 2007
ORDER
Background
Although the complaint is dated July 4, 2006, plaintiff, acting pro se, did not file it until March 20, 2007 (doc. 1). A few days later, on March 22, 2007, the court granted plaintiff's motion to proceed in forma pauperis (doc. 4). Among other things, that order explicitly instructed plaintiff that he "shall be responsible for service by waiver or of the summons and complaint. Id. at 1. On April 4, 2007, the Clerk of the Court issued a summons in this action and mailed a copy to plaintiff (doc. 5). The "Return of Service" included with that summons is blank. See id. at 2. However, on May 4, 2007, plaintiff filed a letter from the United States Postal Service indicating that on April 11, 2007 an unspecified "item" was delivered via certified mail to "AIG Insurance Company," 16001 North 28th Avenue, Phoenix, Arizona 85053 (doc. 6).
It is unclear from that document whether "A.I.G. Insurance Co" was written thereon by a Postal Service employee, plaintiff, or someone else, although based upon plaintiff's handwritten submissions, it appears to have been written by him.
When defendant did not answer or otherwise respond, on August 13, 2007, plaintiff filed a "motion" seeking "judgement [sic] and punitive damages and [dismissal] with prejudice[.]" Doc. 7. He filed a second similar "motion" that same day. Doc. 8. Stamped on both motions is a notation from the Clerk of the Court that those "DOCUMENT[S] [ARE] NOT IN PROPER FORM ACCORDING TO FEDERAL AND/OR LOCAL RULES AND PRACTICES AND [ARE] SUBJECT TO REJECTION BY THE COURT." Docs. 7 and 8 (emphasis in originals). Thereafter, on September 10, 2007, plaintiff filed what the Clerk of the Court deemed to be a "Notice" seeking an "answer and judgement [sic][.]" Doc. 9. In contrast to the two motions, plaintiff indicated on that "Notice" that it was mailed to defendant. See id. A few weeks later, on September 27, 2007, plaintiff filed a letter with the court "ordering and demanding" the court to enter judgment in his favor and award punitive damages. Doc. 10. As with the two motions, there is no indication that this letter was ever served upon defendant. Defendant has not appeared, answered, or responded to plaintiff's motions in any way.
Discussion
I. Service of Process
The court construes plaintiff's motions (docs. 7 and 8) as seeking a default judgment pursuant to Fed.R.Civ.P. 55. Before addressing those motions, however, there is the more fundamental issue of whether defendant has been properly served. This issue is critical because "[w]ithout a proper basis for jurisdiction, or in the absence of proper service of process, the district court has no power to render any judgment against the defendant's person or property unless the defendant has consented to jurisdiction or waived the lack of process." S.E.C. v. Ross, 2007 WL 2983707, at *6 (9th Cir. Oct. 15, 2007) (citing, inter alia, Mason v. Genisco Tech. Corp., 960 F.2d 849, 851 (9th Cir. 1992)) (emphasis added). Simply put, "[a] judgment entered without jurisdiction over the defendant is void." Id.
"'A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with FED. R. CIV. P. 4.'" Id. (quoting Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986)); see also Fed.R.Civ.P. 4(k) ("Service of a summons or filing a waiver of service is effective to establish jurisdiction over the person of a defendant[.]") In the present case, the record does not reflect that plaintiff obtained a waiver of service from defendant as Fed.R.Civ.P. 4(d) allows. In the absence of such a waiver, it was incumbent upon plaintiff to serve defendant in accordance with Fed.R.Civ.P. 4.
Evidently defendant "AIG Insurance" is a business entity, and as such Rule 4(h) governs service upon it. In accordance with Rule 4(h)(1) a business entity which does not voluntarily appear and defend may be served:
in a judicial district of the United States in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service or process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant[.]
Rule 4(e)(1) provides in pertinent part that "[u]nless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, . . ., may be effected in any judicial district of the United States: . . . pursuant to the law of the state in which the district court is located, or in which service is effective, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State[.]" Fed.R.Civ.P. 4(e)(1). Because this district court is located within the state of Arizona, the court looks to Arizona state law governing service of process. The applicable Arizona rule is remarkably similar to Fed.R.Civ.P. 4(h)(1), and states as follows:
Service upon a domestic or foreign corporation . . . from which a waiver has not been obtained and filed, shall be effected by delivering a copy of the summons and of the pleading to a partner, an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the party on whose behalf the agent accepted or received service.
ARCP 4.1(k).
Fed.R.Civ.P. 4(h)(1) (footnote and emphasis added). As just described then, service of process is sufficient if it conforms either to the applicable federal or state rule. Thus, to determine whether defendant was properly served in this case, the court will look to the Federal Rules of Civil Procedure and, because this court is located in Arizona, it also will look to that state's service of process rules.
A. Federal Rules of Civil Procedure
As previously alluded to, evidently plaintiff attempted to effect service by mailing a copy of the summons and complaint to defendant. When serving a business entity pursuant to Rule 4(h), however, "personal service on someone at" that entity is "require[d] . . . and service by mail to a general corporate address is not sufficient." Belle v. Chase Home Finance LLC, 2007 WL 1518341, at *3 (S.D. Cal. May 22, 2007) (citing, inter alia, Fed.R.Civ.P. 4(h) advisory committee's note to 1993 Amendments)). In the present case, at best it appears that plaintiff mailed a copy of the summons and complaint to a "general corporate address." See id. Plainly this is insufficient to properly effect service under Fed.R.Civ.P. 4(h)(1).
The court observes that the Arizona Corporation Commission listings do not include an entity named "A.I.G. Insurance Company," although there are several entities with similar names which also appear to be in the insurance business. See Arizona Corporation Commission, http://www.cc/state/az/us/(last visited Oct. 18, 2007). Further, none of the listed AIG entities indicates that their address is 16001 North 28th Avenue, Phoenix, Arizona 85053 — the address to which plaintiff supposedly mailed the summons and complaint.
B. Arizona Law
Nor does the record establish that defendant was properly served in accordance with Arizona law. Arizona allows service by mail upon parties "outside the state[.]" ARCP 4.2(c). It does not appear as though this defendant is "outside the state" however. Therefore, plaintiff's attempted service by mail was ineffective. Even if defendant is "outside the state," nonetheless plaintiff did not properly serve defendant under that Rule because he did not file an acknowledgment signed under oath or affirmation by the defendant. See Postal Instant Press, Inc. v. Corral Restaurants, Inc., 925 P.2d 260 (Ariz. 1996) (court lacked jurisdiction over corporation served by mail where no acknowledgment of receipt of service under oath was returned and filed as ARCP 4.1(c)(2) requires), supplemented on reconsideration, 930 P.2d 1001 (Ariz. 1997). Thus, defendant was not properly served by mail under Arizona law.
Assuming, as it appears, that plaintiff was attempting to serve defendant pursuant to ARCP 4.1(k), for the same reason that service was defective under Fed.R.Civ.P. 4(h)(1), it is also defective under that state rule. Service by mail alone does not satisfy ARCP 4.1(k).
To summarize, because plaintiff has not properly served defendant under either the Federal Rules of Civil Procedure or pursuant to Arizona law, this court's power over defendant "remain[s] nothing more than a potentiality." See S.E.C. v. Ross, 2007 WL 2983707, at *7. Thus, as this juncture the court has two options. It may either dismiss the action without prejudice or quash service. S.J. v. Issaquah School Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006). Because it appears that proper service may be effected, the court sua sponte quashes any purported service upon defendant. See Grand Canyon Resort Corp. v. Drive-Yourself Tours, Inc., 2006 WL 1722314, at *7 (D. Ariz. 2006) (citing Umbenhauer v. Woog, 969 F.2d 25, 30-31 (3rd Cir. 1992)) ("If it appears that proper service may be effected, quashing service is preferred.") Further, although the 120 day filing period has passed in this case, taking into account plaintiff's pro se status, in the exercise of its discretion under Fed.R.Civ.P. 4(m), plaintiff has sixty (60) days from the date of this order in which to either (1) properly serve defendant in accordance with the applicable law, or (2) file a waiver of service as Fed.R.Civ.P. 4(d) allows. Failure to properly and timely serve defendant or to properly and timely file a waiver will result in dismissal of this action.
Rule 4(m) requires service of the summons and complaint upon the defendant within 120 days "after the filing of the complaint[.]" Fed.R.Civ.P. 4(m). Here, because the complaint was filed on March 20, 2007, plaintiff had 120 days thereafter in which to serve the summons and complaint.
II. Default Judgment
Because defendant has not been properly served, the court lacks jurisdiction to consider plaintiff's motions for default judgment. Accordingly, the court denies those motions without prejudice to renew (docs. 7 and 8). Plaintiff is advised, however, that in the event he seeks default judgment at a later date, he must comply with the detailed procedures for seeking such relief as set forth in Fed.R.Civ.P. 55 and the case law construing that Rule; and his papers must also be in proper form.
Conclusion
For the reasons set forth above, IT IS ORDERED that
(1) the service of process upon defendant is QUASHED;
(2) plaintiff's motions for default judgment (docs. 7 and 8) are DENIED, without prejudice; and
(3) plaintiff has sixty (60) days from the date of this order in which to either (1) properly serve defendant in accordance with the applicable law, or (2) file a waiver of service as Fed.R.Civ.P. 4(d) allows.