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Sarnella v. Kuhns

United States District Court, D. Colorado

March 23, 2018

Judith Sarnella, as personal representative of the estate of Deovalente Sarnella, deceased, Plaintiff,
Eric Kuhns; Phillip Medlin; Jefferson County Sheriff Department, Defendants.



         THIS 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 Plaintiff's Response.

         Plaintiff 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).

         According 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).

         Defendants 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.

         Under 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)).

         Proper 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).

         In 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).

         I. Insufficient Process Under Rule 12(b)(4)

         “A 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. 4(b).

         Here, 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.

         A 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 [90]-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).

         Defendants 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).

         II. Insufficient Service of ...

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