Opinion
Civil Case No. 20-CV-00232-CMA-GPG
08-24-2020
ARRON PISANI, Plaintiff, v. THE RITZ-CARLTON HOTEL COMPANY, L.L.C., and PATRICK HARRINGTON, Defendants.
REPORT AND RECOMMENDATION GRANTING DEFENDANT HARRINGTON'S MOTION TO DISMISS COUNT TWO OF THE AMENDED COMPLAINT FOR INSUFFICIENT SERVICE OF PROCESS
This matter comes before the Court on Defendant Patrick Harrington's motion to dismiss count two of the Amended Complaint (D. 18), Plaintiff's response (D. 20), and Harrington's reply (D. 27). The motion has been referred to this Magistrate Judge for recommendation. (D. 21). The Court has reviewed the pending motion, response, reply, and all attachments. The Court has also considered the entire case file, the applicable law, and is sufficiently advised in the premises. Oral argument is not necessary. This Magistrate Judge respectfully recommends that the motion be GRANTED for the reasons specifically set forth below. I. FACTS
"(D. 18)" is an example of the stylistic convention used to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Report and Recommendation.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. FED. R. CIV. P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
On November 30, 2019, Plaintiff filed his Complaint in the Eagle County District Court, under Colorado Revised Statutes § 13-21-115 for injuries allegedly sustained while Plaintiff was an invitee on The Ritz-Carlton's real property, or alternatively, under § 13-21-115 for negligence. (D. 1-1; D. 1-3). Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, The Ritz-Carlton removed the case to the United States District Court of Colorado. (See D. 1). Neither Plaintiff nor Defendant Patrick Harrington have contested removal. Plaintiff filed an Amended Complaint on January 29, 2020. (D. 6). This Court determined that jurisdiction was conferred upon this court under 28 U.S.C. § 1332, thus, "[u]nder the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law." Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996) (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)).
Plaintiff alleges that on December 2, 2018, he was assaulted and battered by Defendant Harrington at the Wyld Bar located in The Ritz-Carlton. (D. 6, p. 2). Plaintiff raises two claims for relief: (1) premise liability under Colorado Revised Statute § 13-21-115 against Ritz-Carlton for failure to exercise reasonable care to protect its patron and (2) battery against Harrington. (Id., pp. 2-4). Specifically, Plaintiff alleges that Harrington injured Plaintiff while on a property owned by The Ritz-Carlton. In the instant motion, Harrington moves for dismissal of the second claim in the Amended Complaint for failure to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6) and for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5). II. LEGAL STANDARD
A. Service of Process
Under Rule 12(b)(5), this Court may dismiss an action for insufficient service of process. "Effectuation of service is a precondition to suit, while waiver of insufficient service is the forfeiture of defense to that service." Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998). "Personal service under Rule 4 serves two purposes: notifying a defendant of the commencement of an action against him and providing a ritual that marks the court's assertion of jurisdiction over the lawsuit." Oklahoma Radio Assocs. v. F.D.I.C., 969 F.2d 940, 943 (10th Cir. 1992). Without proper service, the court lacks personal jurisdiction over the defendant. Id.
A motion asserting a defense under Rule 12(b) "must be made before pleading if a responsive pleading is allowed." FED. R. CIV. P. 12. When opposing a motion to dismiss under Rule 12(b)(5), "plaintiff bears the burden of making a prima facie case that he has satisfied statutory and due process requirements so as to permit the court to exercise personal jurisdiction over the defendant." Meyers v. Pfizer, Inc., No. 13-CV-01508-WJM-CBS, 2014 WL 1598723, at *2 (D. Colo. Apr. 21, 2014). "The parties may submit affidavits and other documentary evidence for the Court's consideration, and [a] [p]laintiff is entitled to the benefit of any factual doubt." Lopez v. Colorado, No. 19-CV-00684-WJM-MEH, 2020 WL 2309558, at *19 (D. Colo. Jan. 7, 2020), report and recommendation adopted, No. 19-CV-0684-WJM-MEH, 2020 WL 1074756 (D. Colo. Mar. 6, 2020) (quoting Fisher v. Lynch, 531 F. Supp. 2d 1253, 1260 (D. Kan. 2008)). Plaintiff is required to show that "the procedure employed by him to effect service satisfied the requirements of Rule 4 of the Federal Rules of Civil Procedure." Meyers, 2014 WL 1598723, at *2 (citing Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987)).
B. Failure to State a Claim
Under Rule 12(b)(6), a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To state a claim that is plausible on its face, a complaint must "sufficiently allege[] facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
A claim is not plausible on its face "if [the allegations] are so general that they encompass a wide swath of conduct, much of it innocent," and the plaintiff has failed to "nudge[ the] claims across the line from conceivable to plausible." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). And a plaintiff may not rely on mere labels, conclusions, or formulaic recitation of the elements of a cause of action. Twombly, 550 U.S. at 555. During this stage of the litigation, the complaint does not need detailed factual allegations, but it must provide more in order to raise "a right to relief above the speculative level." Twombly, 550 U.S. at 555. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," the complaint has merely alleged but has failed to show "that the pleader is entitled to relief." Id. (citing FED. R. CIV. P. 8(a)(2)). III. ANALYSIS
A. Motions by Plaintiff and Harrington
Before addressing the merits of Harrington's motion to dismiss, this Court addresses Plaintiff's request that "Summary Judgment should be granted in favor of the Plaintiff." (D. 20, pp. 2, 7-9). In response, Harrington requests that "Plaintiff [be] held to show cause why sanctions should not issue as a result of his sham motion filed for improper purposes, to harass, cause unnecessary delay, or needlessly increase the cost of litigation pursuant to FED. R. CIV. P. 11." To the extent that either parties' request could be construed as a motion for either summary judgment or sanctions, these requests are improper as a motion "shall not be included in a response or reply" to a motion and must "be filed as a separate document." D.C.COLO.LCivR 7.1(d). This Court, therefore, does not consider either request.
B. Insufficient Service of Process
Harrington argues that Plaintiff "did not serve Defendant Harrington with a summons as required by C.R.C.P. 4." (D. 18, p. 7). Plaintiff's affidavit of service indicates that service was effected upon Harrington by leaving the complaint with jury demand and district case cover sheet with Harrington at his residence in Tampa, Florida. (D. 20-1). Plaintiff does not dispute that service of process was deficient but rather argues that:
[i]t is in the interest of the Court's time and the interest of justice to Deny Defendant Harrington's Motion To Dismiss for insufficient process. Should the Court grant Defendant Harrington's Motion on this technical grounds of insufficient process, when the Defendant has availed himself to the Court, Plaintiff will be forced to re-file the action and further serve the Defendant Harrington, only to be properly
brought back before the Court on the same issues, thereby wasting the Court's time and resources.(D. 20, p. 10). Plaintiff further argues that any actions or representations by Harrington's counsel are "sufficient enough to [overcome] a defense of insufficient service of process and/or a defense of lack of personal jurisdiction." (Id.).
Under Rule 4(e), a defendant must be served by, inter alia, "delivering a copy of the summons and of the complaint to the individual personally" or "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." FED. R. CIV. P. 4(e)(1)-(2). Proper service of process, under Colorado Rule of Civil Procedure 4(e)(1), provides that personal service may be made "[u]pon a natural person whose age is eighteen years or older by delivering a copy thereof to the person, or by leaving a copy thereof at the person's usual place of abode, with any person whose age is eighteen years or older and who is a member of the person's family." C.R.C.P. 4(e)(1)). The summons must contain:
the name of the court, the county in which the action is brought, the names or designation of the parties, shall be directed to the defendant, shall state the time within which the defendant is required to appear and defend against the claims of the complaint, and shall notify the defendant that in case of the defendant's failure to do so, judgment by default may be rendered against the defendant.C.R.C.P. 4(c).
"If the summons is void, there is no [jurisdiction] over the parties." Fletcher v. Dist. Court In & For Jefferson Cty., 322 P.2d 96, 97 (Colo. 1958). Plaintiff had the burden of making a prima facie case that he had satisfied statutory and due process requirements, and he failed to do so. Meyers, 2014 WL 1598723, at *2; see ReMine ex rel. Liley v. Dist. Court for City & Cty. of Denver, 709 P.2d 1379, 1382 (Colo. 1985) ("When a defendant files a motion to quash service of process, the plaintiffs have the burden of establishing all facts essential to jurisdiction."). Because service of process was legally defective, this Court lacks personal jurisdiction over Harrington. And when a plaintiff does not meet his burden, the Court may dismiss for failure to properly serve a defendant. See Lasky v. Lansford, 76 F. App'x 240, 242 (10th Cir. 2003). A court may allow a plaintiff "to cure defects in service before dismissing a case on that basis" or it may dismiss if the plaintiff has not demonstrated good cause in curing the defect. Jordan v. Cooley, No. 13-CV-01650-REB-MJW, 2014 WL 923279, at *2 (D. Colo. Mar. 10, 2014). Harrington filed his first motion to dismiss for insufficient service of process in state court on January 24, 2020. (D. 1-13). Harrington refiled this same motion in this Court on February 18, 2020. (D. 18). Without even considering the state court's docket, Plaintiff has been aware for over six months (188 days and counting) that Harrington was not properly served. Nothing in the record indicates that Plaintiff has made any effort to arrange for proper service of process on Harrington.
Under Rule 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." "Rule 4(m) requires the court to dismiss a complaint if timely service has not been demonstrated unless the plaintiff shows good cause for the failure to arrange for timely service." Jordan, 2014 WL 923279, at *2. No good cause has been shown by Plaintiff. And Plaintiff's argument that Harrington's motion to dismiss somehow overcomes defective service of process is unavailing. A motion asserting defenses under Rule 12(b) must be made before pleading if a responsive pleading is allowed. FED. R. CIV. P. 12(b). And Harrington's motion to dismiss under Rule 12(b) does not waive personal jurisdiction. See Sunlight Saunas, Inc. v. Sundance Sauna, Inc., 427 F. Supp. 2d 1011, 1015 (D. Kan. 2006). Finally, because this Court lacks jurisdiction over Harrington, it will not proceed further to analyze his motion to dismiss the Amended Complaint for failure to state a claim. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) ("[D]ismissals for lack of jurisdiction should be without prejudice because the court, having determined that it lacks jurisdiction over the action, is incapable of reaching a disposition on the merits of the underlying claims."). IV. CONCLUSION
For the foregoing reasons, this Magistrate Judge respectfully RECOMMENDS that Harrington's Motion to Dismiss Count Two of the Amended Complaint be GRANTED. (D. 18).
This Magistrate Judge FURTHER RECOMMENDS that Harrington be DISMISSED WITHOUT PREJUDICE from this cause of action.
Dated at Grand Junction, Colorado this August 24, 2020.
/s/_________
Gordon P. Gallagher
United States Magistrate Judge