United States District Court, D. Colorado
PETER J. WIRS, Hon., Plaintiff,
v.
UNITED WORLD WRESTLING Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S MARCH 27, 2018
RECOMMENDATION AND DENYING SUMMARY JUDGMENT & ORDER TO
SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED WITHOUT
PREJUDICE FOR FAILURE TO SERVE PROCESS
William J. Martinez United States District Judge
Plaintiff
Peter J. Wirs (“Wirs”), proceeding pro
se, sues Defendant United World Wrestling
(“UWW”), a Swiss organization that serves as the
worldwide governing body for amateur wrestling (freestyle and
Greco-Roman). Wirs's chief complaint is that UWW
eliminated from its “Veterans World
Championships” event all competitions for wrestlers
that are 60 years of age or older. (ECF No. 1 ¶ 1.) Wirs
asserts that this choice violated, among other things,
section 2 of the Clayton Act (15 U.S.C. § 13).
(Id. ¶¶ 37- 44.)
This
matter is before the Court on U.S. Magistrate Judge Scott T.
Varholak's March 27, 2018 Recommendation (ECF No. 61),
recommending that the Court deny Wirs's “Omnibus
Motion” (ECF No. 53), which is primarily a motion for
summary judgment against UWW. Wirs filed a timely objection.
(ECF No. 62.) UWW has never appeared in this action and
accordingly filed no response.
For the
reasons explained below, the Court will adopt Judge
Varholak's recommended disposition of Wirs's summary
judgment claim. The Recommendation also addresses matters
raised in the Omnibus Motion apart from summary judgment, but
Wirs states in his objection that all of those matters are
now moot. (ECF No. 62 ¶¶ 17-19.) The Recommendation
will accordingly be vacated as moot as to those matters.
I.
STANDARD OF REVIEW
When a
magistrate judge issues a recommendation on a dispositive
matter, Federal Rule of Civil Procedure 72(b)(3) requires
that the district judge “determine de novo any part of
the magistrate judge's [recommendation] that has been
properly objected to.” Fed.R.Civ.P. 72(b)(3). In
conducting its review, “[t]he district court judge may
accept, reject, or modify the recommendation; receive further
evidence; or return the matter to the magistrate judge with
instructions.” Id. Here, Plaintiff filed a
timely objection to the Recommendation, so the Court reviews
the issues before it de novo.
II.
ANALYSIS
Judge
Varholak recommends denying the Omnibus Motion because Wirs
has not effectively served process on UWW, and summary
judgment is not an appropriate remedy against a party that
has not appeared; and, alternatively, because Wirs has not
established entitlement to relief on the merits. The Court
need only address the first basis for denial, i.e.,
failure to serve effective process.
Wirs
believes he may serve UWW by serving USA Wrestling in
Colorado Springs because, Wirs says, USA Wrestling is
UWW's agent in the United States. (ECF No. 53 ¶ 5.)
The Court assumes without deciding that proper service on USA
Wrestling amounts to proper service on UWW. The question
still remains whether Wirs effected proper service on USA
Wrestling.
The
Federal Rules of Civil Procedure direct a plaintiff suing a
“domestic or foreign corporation, or a partnership or
other unincorporated association” to serve the summons
and complaint “in the manner prescribed by Rule 4(e)(1)
for serving an individual.” Fed.R.Civ.P. 4(h)(1)(A).
Rule 4(e)(1), in turn, states that the summons and complaint
may be served “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.” Wirs understands this and
claims that he has properly served USA Wrestling under
Colorado Rule of Civil Procedure 4(e)(4)(G), which permits
service on a non-human legal entity by serving the summons
and complaint “upon any person serving as a
shareholder, member, partner, or other person having an
ownership or similar interest in, or any director, agent, or
principal employee of such entity, who can be found in this
state.” (See ECF No. 53 ¶ 4.)
Here,
it is undisputed that Wirs delivered the summons and
complaint to USA Wrestling via “Priority Mail
Express” through the United States Postal Service. (ECF
No. 55 at 2.) But, save for in rem cases, the
Colorado Rules of Civil Procedure prohibit service by mail
without a court order authorizing such service. Colo. R. Civ.
P. 4(f). How, then, does Wirs justify service by mail? Wirs
obtained a Proof of Service declaration from the mail carrier
who delivered the parcel, and that declaration states that
the mail carrier delivered the parcel to a particular
individual at USA Wrestling. (Id. at 1.) Wirs then
argues that the mail carrier was a person at least 18 years
old and not a party to this lawsuit, see Fed. R.
Civ. P. 4(c)(2), so nothing more was required to effect
service. (ECF No. 62 ¶ 5.)
Wirs's
argument, although clever, is plainly wrong. At present, mail
is always delivered by humans. If the fact that a
mail carrier is an adult non-party is also enough to convert
the mail carrier into a process server, then the prohibition
on service by mail would be a nullity. Accordingly, Judge
Varholak was correct to conclude that Wirs has not properly
served process on UWW. It follows that Judge Varholak was
further correct to conclude that summary judgment is
inappropriate. The Court adopts the Recommendation's
analysis of those matters.
Given
this disposition, the Court will order Wirs to show cause
under Federal Rule of Civil Procedure 4(m) why this case
should not be dismissed without prejudice for failure to
serve process within the allotted time. If Wirs wishes to
stand on his claim that his attempted service of process was
effective, he may state as much and the Court will then
dismiss this lawsuit without prejudice. Under the
circumstances, such a dismissal would be considered a final,
appealable order, see Constien v. United States, 628
F.3d 1207, 1210 (10th Cir. 2010), and Wirs may explore the
issue with the Tenth Circuit, should he desire.
III.
...