United States District Court, D. Colorado
LI CHENG, individually, and on behalf of all others similarly situated, Plaintiff,
SUSHI AJI, INC., JIANWEI CAO, and QIONG CAO, Defendants.
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
Sushi Aji, Inc., Jian Wei Cao, and Qiong Cao (collectively
“Defendants”) have filed a Motion to Dismiss
challenging the sufficiency of service of each defendant and
arguing the complaint fails to state a claim for which relief
may be granted. For the reasons that follow, the Court grants
the motion in part and denies it without prejudice in part as
set forth herein.
Li Cheng (“Plaintiff”) initiated this action on
July 18, 2017. Along with the Complaint, Plaintiff sought the
issuance of Summonses addressed to each Defendant (including
the corporate Defendant) at “14807 W 64th Ave., Unit
B[, ] Arvada[, ] ¶ 80007.” ECF No. 2. On July 19,
2017, the Clerk of the Court issued Summonses containing the
name of each Defendant at that address. ECF No. 4.
Thereafter, Plaintiff filed an Affidavit of Service for each
defendant on July 31, 2017. ECF No. 7. Each affidavit stated
that service was executed on July 26, 2017, at approximately
2:55 PM by leaving the pertinent documents with “TINA
WHIANGE” at the stated address. Id. at 1-3.
The affidavits state that “Tina Whiange” is
“the MANAGER & AUTHORIZED AGENT” of each
August 30, 2017, Defendants filed the present Motion to
Dismiss pursuant to Rule 12(b)(5) for insufficient service of
process and 12(b)(6) for failure to state a claim upon which
relief may be granted. Defs.' Mot., ECF No. 13.
Defendants argue that service on each Defendant was
insufficient. Id. at 4. The individual Defendants
Jian Wei Cao and Qiong Cao (the “Individual
Defendants”) both submit declarations stating that they
“do not know a ‘Tina Whiange, '”
“‘Tina Whiange' is not an employee of Sushi
Aji, Inc., ” and “Tina Whiange” is not
either Defendant's “manager or authorized
agent.” Decl. of Jian Wei Cao and Sushi Aji, Inc.
(“Jian Wei Cao decl.”) ¶¶ 5-8, ECF No.
13-3; Decl. of Qiong Cao (“Qiong Cao decl.”)
¶¶ 5-8, ECF No. 13-4. Additionally, the Individual
Defendants declare that the address at 14807 W 64th Ave.,
Unit B, Arvada, CO 80007 “is not a dwelling or usual
place of abode where I reside.” Jian Wei Cao decl.
¶ 9; Qiong Cao decl. ¶ 9. Defendants also argue
that service on the corporate Defendant was insufficient
because “Tina Whiange” is not an authorized agent
of Sushi Aji, Inc. Defs.' Mot. 4-5. To support this,
Defendants submit a “Periodic Report” for Sushi
Aji, Inc., filed with the Colorado Secretary of State, which
lists “Jian Wei Cao” as its registered agent. ECF
No. 13-1. The report lists the registered agent's address
as “6363 W 120TH AVE 322[, ] Broomfield[, ] ¶
counters that “service on ‘Tina Whiange' who
represented to the process server that she was authorized to
accept service on behalf of Defendants at Defendants'
only place of business was sufficient.” Pl.'s Resp.
5-6, ECF No. 20. Additionally, Plaintiff argues that service
was sufficient under Colorado law. Id. at 4-5.
Court may dismiss a case pursuant to Rule 12(b)(5) of the
Federal Rules of Civil Procedure for insufficient service of
process. A “Rule 12(b)(5) motion challenges the mode of
delivery or the lack of delivery of the summons and
complaint.” Meyers v. Pfizer, Inc., No.
13-cv-01508-WJM-CBS, 2014 WL 1598723, at *2 (D. Colo. April
21, 2014) (quoting 5B Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure 3D § 1353).
“Effectuation of service is a precondition to suit . .
. .” Jenkins v. City of Topeka, 136 F.3d 1274,
1275 (10th Cir. 1998). Without proof of service, the Court
lacks personal jurisdiction over the defendant. See
Hukill v. Okla. Native Am. Domestic Violence Coal., 542
F.3d 794, 797 (10th Cir. 2008).
opposing a motion to dismiss for insufficient service of
process, a “plaintiff bears the burden of making a
prima facie case that [he or she] has satisfied statutory and
due process requirements so as to permit the court to
exercise personal jurisdiction over the defendant.”
Allen v. United Props. & Const., Inc., No.
07-cv-00214-LTB-CBS, 2008 WL 4080035, at *9 (D. Colo. Sept.
3, 2008) (quoting Fisher v. Lynch, 531 F.Supp.2d
1253, 1260 (D. Kan. 2008)). “A signed return of service
constitutes prima facie evidence of valid service
‘which can be overcome only by strong and convincing
evidence.'” Dittimus v. Bond, No.
12-cv-03010-MSK-KMT, 2013 WL 4496432, at *2 (D. Colo. Aug.
22, 2013) (quoting O'Brien v. R.J. O'Brien &
Assocs., 998 F.2d 1394, 1398 (7th Cir. 1993)).
“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.” Fisher, 531 F.Supp.2d at 1260. A
“[p]laintiff must demonstrate that the procedure
employed by [him or her] to effect service satisfied the
requirements of Rule 4 of the Federal Rules of Civil
Procedure.” Meyers, 2014 WL 1598723, at *2.
of the Federal Rules of Civil Procedure states the
requirements for effective service of process. The Court will
address whether service was sufficient for both the
individual and corporate Defendants.
The Individual Defendants
4(e) states that, in the absence of an exception provided by
federal law or the defendant's waiver, an individual who
is competent and a non-minor may be served in a judicial
district of the United States by:
(1) 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