Forzani v. Peppy Products

          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]

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