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Cheng v. Sushi AJI, Inc.

United States District Court, D. Colorado

October 23, 2017

LI CHENG, individually, and on behalf of all others similarly situated, Plaintiff,



         Defendants 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.


         Plaintiff 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 Defendant. Id.

         On 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[, ] ¶ 80020.” Id.

         Plaintiff 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.


         The 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).

         When 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.


         Rule 4 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.

         I. The Individual Defendants

         Rule 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 ...

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