United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
This
matter is before the Court on Defendants Amazon.com, Inc.,
Amazon.com DEDC, Inc., Amazon Payments, Inc., and Amazon
Services, Inc.'s (collectively, the “Amazon
Defendants”) Motion to Dismiss
[#14][1] (the “Motion”). Plaintiff
filed a Response [#18] in opposition to the Motion, and the
Amazon Defendants filed a Reply [#20]. The Motion [#14] has
been referred to the undersigned for a recommendation
regarding disposition pursuant to 28 U.S.C. § 636(b)(1)
and D.C.COLO.L.CivR 72.1©. See [#15]. The Court
has reviewed all briefing on the Motion [#14], the entire
case file, and the applicable law, and is sufficiently
advised in the premises. For the reasons set forth below, the
Court respectfully RECOMMENDS that the
Motion [#14] be DENIED without prejudice.
I.
Background
Plaintiff
initiated this suit in Denver County District Court by filing
his Original Complaint [#5] on February 23, 2018. Plaintiff
generally alleges that an “e-cigarette” he
purchased through Amazon.com exploded in his pocket on
February 25, 2016, causing severe burns over his left leg.
Am. Compl. [#6] ¶ 31. Plaintiff seeks redress
for his injuries by asserting three claims against all
Defendants for strict products liability, negligent products
liability, and failure to warn. Id. ¶¶
29-63.
On
February 28, 2018, the Amazon Defendants were alerted to the
lawsuit and began communicating with Plaintiff's counsel
regarding Plaintiff's claims, service of process, and the
anticipated filing of an amended complaint. Motion
[#14] at 2-3. Pursuant to Colo. R. Civ. P. 4(m) and an order
by the Denver County District Court, Plaintiff initially had
until April 27, 2018, [2] to serve Defendants with the Original
Complaint [#5]. Id. at 2; Ex. C [#14-3] at
1.[3]
Subsequently, the Denver County District Court granted
Plaintiff an extension of time to serve Defendants until May
11, 2018. Ex. F [#14-6]; Ex. G [#14-7].
Plaintiff
failed to serve Defendants by the extended deadline.
Motion [#14] at 2. Because of this, the Denver
County District Court issued an Order to Show Cause [#14-8]
on June 6, 2018, directing Plaintiff to “file a Return
of Service . . . on or before June 20, 2018” and
warning Plaintiff that failure to comply would result in
dismissal of the action without prejudice. Ex. H
[#14-8].[4] Shortly thereafter, Plaintiff filed his
Amended Complaint [#6] in state court on June 13, 2018. Two
days later, Plaintiff served the Amazon Defendants with the
Amended Complaint [#6] on June 15, 2018. Ex. I
[#14-9]. On July 6, 2018, the Amazon Defendants removed this
case to the United States District Court for the District of
Colorado. See Notice of Removal [#1].
In the
present Motion [#14], the Amazon Defendants argue that the
claims against them should be dismissed because Plaintiff
failed to timely effect service. Specifically, they ask the
Court to dismiss Plaintiff's claims pursuant to
Fed.R.Civ.P. 12(b)(5) and Colo. R. Civ. P. 12(b)(4) for
insufficient service of process;[5] and D.C.COLO.L.CivR
41.1.[6]
II.
Standard of Review
“Where an action is commenced in state court, and
removed to federal court, an inquiry into the sufficiency of
the service of process begins with the issue whether service
of process was perfected prior to removal.”
Sandoval v. TGM Oak Tree Park, No.
16-CV-144-MCA-SCY, 2016 WL 9818312, at *1 (D.N.M. Nov. 30,
2016) (citing Wallace v. Microsoft Corp., 596 F.3d
703, 706 (10th Cir. 2010)). In resolving this issue,
“federal courts in removed cases look to the law of the
forum state, in this case [Colorado], to determine whether
service of process was perfected prior to removal.”
Wallace, 596 F.3d at 706 (citation omitted); see
also Palzer v. Cox Oklahoma Telecom, LLC, 671 Fed.Appx.
1026, 1028 (10th Cir. 2016). In Colorado, the time limit for
service is governed by Rule 4(m) of the Colorado Rules of
Civil Procedure which provides that:
If a defendant is not served within 63 days (nine weeks)
after the complaint is filed, the court--on motion or on its
own after notice to the plaintiff--shall dismiss the action
without prejudice against that defendant or order that
service be made within a specified time. But if the plaintiff
shows good cause for the failure, the court shall extend the
time for service for an appropriate period.
Colo. R. Civ. P. 4(m).
However,
even if “process served proves to be defective”
under the Colorado rule, that “does not foreclose
service being effected in the federal district court”
under the Federal Rules of Civil Procedure. Palzer,
671 Fed.Appx. at 1028 (internal quotation marks and citation
omitted). This is because the federal removal statute
governing service of process provides that “[i]n all
cases removed from any State court to any district court of
the United States . . . in which process served proves to be
defective, such process or service may be completed or new
process issued in the same manner as in cases originally
filed in such district court.” 28 U.S.C. § 1448.
Rule 4 of the Federal Rules of Civil Procedure controls the
manner of service of process in district court and, pursuant
to Federal Rule 4(m), the plaintiff is required to serve each
defendant “within 90 days after the complaint is
filed[.]” Fed R. Civ. P. 4(m). Thus, in sum, where
service of process is not timely effected under state law
prior to removal and the case is not otherwise time-barred,
28 U.S.C. § 1448 and Federal Rule 4(m) provide the
plaintiff an additional ninety days from the removal date to
effect service in district court. Palzer, 671
Fed.Appx. at 1028; Wallace, 596 F.3d at 706 (holding
that where service was not timely prior to removal,
plaintiffs had additional time to properly serve defendant
under federal rules); see also UWM Student Assoc. v.
Lovell, 888 F.3d 854, 858 (7th Cir. 2018) (“For
removed cases, the combined effect of § 1448 and Rule
4(m) starts the clock on the date of removal.”).
Nevertheless,
if a defendant is not served within ninety days of removal,
Federal Rule 4(m) further provides that “the court--on
motion or on its own after notice to the plaintiff--must
dismiss the action without prejudice against that defendant
or order that service be made within a specified time. But if
the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period.” Fed.R.Civ.P. 4(m). In determining whether to
dismiss under Federal Rule 4(m), the Court uses a two-step
analysis. Espinoza v. United States, 52 F.3d 838,
841 (10th Cir. 1995). First, if the plaintiff demonstrates
that there is “good cause for the failure to timely
effect service[, ]” then he is “entitled to a
mandatory extension of time.” Id. Second, if
the plaintiff does not show good cause, “the district
court must still consider whether a permissive extension of
time may be warranted, ” and may, in its discretion,
“dismiss the case without prejudice or extend the time
for service.” Id.[7]
III.
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