United States District Court, D. Colorado
Judith Sarnella, as personal representative of the estate of Deovalente Sarnella, deceased, Plaintiff,
Eric Kuhns; Phillip Medlin; Jefferson County Sheriff Department, Defendants.
ORDER ON MOTION TO DISMISS
Y. DANIEL, SENIOR UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendants' Motion to
Dismiss for Insufficient Process and Insufficient Service of
Process (ECF No. 16) filed February 12, 2018, and
Plaintiff's Motion to Accept Out of Time Filing (ECF No.
18), filed March 7, 2018. Plaintiff filed their Response (ECF
No. 17) after the deadline, but the Court will accept
Judith Sarnella, as personal representative for the Estate of
Deovalente Sarnella (the “Estate”), filed this
action on September 5, 2017, alleging three claims for relief
stemming from Mr. Sarnella's death on September 2, 2015.
The Complaint asserts three claims under 42 U.S.C. §
1983: negligence, wrongful death, and what appears to be an
Eighth Amendment claim. (See ECF No. 1).
to the docket report, the Clerk of Court issued summonses to
the Estate for the Jefferson County Sheriff, Dep. Kuhns, and
Dep. Medlin on September 6, 2017. (ECF Nos. 3, 3-1, and 3-2).
On November 27, 2017, the Estate filed returns of service for
Defendants. (ECF Nos. 6, 6-1, and 6-2). Unlike the summonses
issued on September 6, 2017, the summonses included with the
returns of service do not bear the signature of the Clerk of
Court, nor does it bear the seal, as required by Fed.R.Civ.P.
4(a)(1)(F) and (G).
contend that they have never received summonses compliant
with Rule 4(a). Defendants further contend that, to date,
Plaintiff has failed to properly serve Defendants within the
requisite time frame pursuant to Rule 4(m). Defendants
request that the action be dismissed pursuant to Fed. R. Civ.
P 12(b)(4) due to insufficient process, and Rule 12(b)(5) for
insufficient service of process.
rules 12(b)(4) and 12(b)(5), a “defendant may object to
plaintiff's failure to comply with the procedural
requirements for proper service set forth in or incorporated
by Rule 4.” Richardson v. Alliance Tire &
Rubber Co., 158 F.R.D. 475, 477 (D.Kan.1994) (quoting 5A
C. Wright & A. Miller, Federal Practice and
Procedure § 1353 (2d ed.1990)). “Rules
12(b)(4) and 12(b)(5) allow a defendant to defend against a
claim on the grounds of insufficiency of process and
insufficiency of service of process.” Whitsell v.
United States, 198 F.3d 260, 260 (10th Cir.1999) (citing
Fed.R.Civ.P. 12(b)(4), 12(b)(5)).
service is a jurisdictional prerequisite to litigation.
“Effectuation of service is a precondition to suit
...” Jenkins v. City of Topeka, 136 F.3d 1274,
1275 (10th Cir.1998). Without proper service, the Court lacks
personal jurisdiction over the Defendant. Oklahoma Radio
Associates v. FDIC, 969 F.2d 940, 943 (10th Cir.1992).
opposing a motion to dismiss for insufficient process or
insufficient service of process, “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.” Allen v. United Properties &
Const., No. 07-cv-00214- LTB-CBS, 2008 WL 4080035, at *9
(D.Colo. Sept. 3, 2008) (unpublished) (quoting Fisher v.
Lynch, 531 F.Supp.2d 1253, 1260 (D.Kan.2008). Plaintiff
must demonstrate that the procedure employed by him to effect
service satisfied the requirements of Rule 4 of the Federal
Rules of Civil Procedure. Light v. Wolf, 816 F.2d
746, 751 (D.C.Cir.1987). Even without a showing of good
cause, the court retains broad discretion to extend the time
for service even when the plaintiff has not shown good cause.
Fed.R.Civ.P. 4(m); Espinoza v. United States, 52
F.3d 838, 840-41 (10th Cir.1995).
Insufficient Process Under Rule 12(b)(4)
Rule 12(b)(4) motion constitutes an objection to the form of
process or the content of the summons rather than the method
of its delivery.” Oltremari by McDaniel v. Kan.
Soc. & Rehab. Serv., 871 F.Supp. 1331, 1349
(D.Kan.1994) (citation omitted); see United States v.
Sharon Steel Corp., 681 F.Supp. 1492, 1499 n. 14 (D.Utah
1987). Among the requirements of Rule 4(a), the contents of a
summons must be signed by the clerk and bear the court's
seal. Fed.R.Civ.P. 4(a)(1)(F) and (G). If the summons is
properly completed, the clerk must sign, seal and issue it to
the plaintiff for service on each defendant. Fed.R.Civ.P.
Defendants highlight that Plaintiff has failed to properly
serve proper summonses on any Defendant because the summonses
were neither signed by the Clerk of the Court, nor did the
summons bear the Court's seal. Indeed, the summonses
filed on November 27, 2017 do not bear the clerk's
signature or the seal of the Court. (See ECF Nos. 6,
6-1, and 6-2). The only signature contained on the documents
appears to be the signature of the process server.
summons which is not signed and sealed by the Clerk of the
Court fails to confer personal jurisdiction over the
defendants. Ayres v. Jacobs & Crumplar, P.A., 99
F.3d 565, 569 (3d Cir. 1996). Under such circumstances,
“it becomes unnecessary for the district courts to
consider such questions as whether service was properly made,
or whether an extension to the -day service period should
be granted under Rule 4(m).” Id. A summons
that is not signed by the clerk of the court or issued under
seal of the court is incurably defective. Cloyd v. Arthur
Andersen & Co., 25 F.3d 1056 (10th Cir. 1994).
point out, and I agree, that, although it appears that the
clerk may have issued valid summonses on September 6, 2017,
Plaintiff failed to serve those documents to any Defendant.
As such, I find that Plaintiffs failed to comply with Rule 4,
and thus process is insufficient. Accordingly, the Complaint
is dismissed under Fed.R.Civ.P. 12(b)(4), which provides the
basis for dismissal based on insufficient process. See
Duran v. Dill, No. 1:16-CV-00928-WJ-KK, 2016 WL 9818317,
at *4 (D.N.M. Nov. 16, 2016).
Insufficient Service of ...