United States District Court, D. Colorado
ANDREW W. JURGENSEN, Plaintiff,
GAREEN HAMALIAN, JORDAN GARDNER, TRANSUNION EQUIFAX, EXPERIAN, PROFESSIONAL FINANCE COMPANY, AARGON COLLECTION AGENCY, WAKEFIELD AND ASSOCIATES, DENVER HEALTH, and BANNER HEALTH, Defendants.
OPINION AND ORDER ADOPTING RECOMMENDATION AND
GRANTING MOTIONS TO DISMISS
S. KRIEGER SENIOR UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court pursuant to the
Magistrate Judge's March 7, 2019 Recommendation
(# 90) that all pending motions to dismiss
(# 14, 16, 22, 25, 28, 34, 54), made by all
Defendants other than Dr. Gareen Hamalian, be granted. No
party has filed Objections to that Recommendation. Also
pending is Dr. Hamalian's Second Motion to Quash Service
of Process on her (# 87), Mr.
Jurgensen's response (# 88), and Dr.
Hamalian's reply (# 89)
Defendants other than Dr. Hamalian have moved to dismiss Mr.
Jurgensen's claims against them. The Court referred those
motions to the Magistrate Judge, and on March 7, 2019, the
Magistrate Judge issued a Recommendation (#
90) that all of the motions be granted. The
Recommendation advised the parties of the operation of
Fed.R.Civ.P. 72(b), requiring any Objections to the
Recommendation to be filed with 14 days of service. The
record reflects that the Defendants were served
electronically with the Recommendation and that Mr. Jurgensen
was served with a copy by mail, sent the same date the
Recommendation was issued, at his address of record. More
than 14 days have passed since the Recommendation was issued
and no party has filed Objections. In such circumstances, the
Court review the Recommendation under whatever standard of
review it deems appropriate. Summers v. State of
Utah, 927 F.2d 1165, 1167 (10thCir. 1991).
The Court has reviewed the Recommendation for clear error
and, finding none, adopts the Recommendation in its entirety.
Accordingly, the Defendants' various motions to dismiss
are granted for the reasons stated in the Recommendation.
Dr. Hamalian's motion
Jurgensen commenced this action in August 2018. Mr. Jurgensen
first attempted service of process on Dr. Hamalian at an
address on Bannock Street in Denver, Colorado. According to
the affidavit of service (# 42) filed by Mr.
Jurgensen, the process server went to that address -
apparently Dr. Hamalian's prior place of business -- but
was told that Dr. Hamalian “does not work [there] any
longer” and had “moved to the East Coast.”
Jurgensen located another potential work address for Dr.
Hamalian and attempted to serve process upon her at an
address in Marlton, N.J. (#49 at
4). The process server left the Summons and
Complaint at that address with an Administrative Assistant.
Thereafter, Dr. Hamalian moved (# 53) to
quash Mr. Jurgensen's purported service upon her, stating
that the Marlton address was her former place of business,
but that she had resigned from that employer approximately
one month before service was attempted. On December 17, 2018,
the Magistrate Judge granted (# 74) Dr.
Hamalian's motion. The Magistrate Judge further directed
that Mr. Jurgensen complete service upon Dr. Hamalian by
January 11, 2019 and that he promptly file proof of service
January 14, 2019, Mr. Jurgensen filed another affidavit of
service (# 86), this time indicating that he
had effectuated service on Dr. Hamalian by serving her
father, Baizar Hamalian, at a residential address in River
Vale, N.J. that, Mr. Jurgensen contends, was also Dr.
Hamalian's place of abode. Dr. Hamalian has moved
(# 87) to quash that service as well,
submitting an affidavit stating that the River Vale address
used to be her residence, but that she had not
resided at that location since November 2017. Dr. Hamalian
further requested that, because Mr. Jurgensen had not
effected service within the time period provided by
Fed.R.Civ.P. 4(m), plus the additional time granted by the
Magistrate Judge after quashing the initial attempt(s) at
service, the Court dismiss the claims against her for failure
to serve process.
Jurgensen responds that a website,
www.stateinforservices.com, reports that Dr. Hamalian
maintains an active voter registration at the River Vale
address. Mr. Jurgensen also requests that, if the Court is
inclined to grant Dr. Hamalian's motion, that he be given
additional time to continue to effectuate service upon her,
on the grounds that he states that the did not promptly
receive the Magistrate Judge's prior Order requiring him
to accomplish service by January 2019. (Since the filing of
that response in February 2019, Mr. Jurgensen has not filed
any further affidavits of service concerning Dr. Hamalian.)
reply, Dr. Hamalian notes that the website Mr. Jurgensen
relies upon is not self-authenticating, but rather, a private
business' compilation of public records, and that it
should therefore be treated as inadmissible hearsay. Dr.
Hamalian notes that the website itself contains a disclaimer,
noting that the site's owner “makes no guarantees
on the validity of the data presented” and that
“information may not be accurate.” Dr. Hamalian
also refers back to her initial affidavit that concedes that
she was “registered to vote in the town of River Vale,
New Jersey at one time, ” but that she is “not
currently registered to vote there.”
Court incorporates by reference the legal discussion found in
the Magistrate Judge's December 2018 Order quashing the
prior attempt(s) at service. As stated therein, Mr. Jurgensen
bears the burden of establishing that he has served Dr.
Hamalian at her “usual place of abode” under
Fed.R.Civ.P. 4(e)(2)(B). Here, Mr. Jurgensen relies entirely
on the website's assertion that Dr. Hamalian's voter
registration reflects the River Vale address as her
residence. But Mr. Jurgensen's reliance on that website
is misplaced for several reasons. As Dr. Hamalian points out,
the website itself is hearsay - that is, it is a statement
(“Dr. Hamalian resides in River Vale”),
made by a declarant (the website) outside of court, and
offered by Mr. Jurgensen for the truth of the matter asserted
(that Dr. Hamalian does indeed reside at the River Vale
address). Fed.R.Evid. 801(c). The Federal Rules of Evidence
generally deem hearsay inadmissible. Fed R. Evid. 802. It
does not appear that the website's contents fall within
any of the recognized exceptions to the hearsay rule.
Fed.R.Evid. 803 & 804; see also Fed. R. Evid.
801(d) (statements that are non-hearsay). Accordingly, the
Court rejects the website as evidence of Dr. Hamalian's
residence. Because the website is the only evidence Mr.
Jurgensen has tendered to establish the sufficiency of his
service, the Court grants Dr. Hamalian's motion for this
even if the website's contents were not hearsay, Mr.
Jurgensen faces the additional problem of the website's
disclaimer. The website makes clear that it is not prepared
to represent that the information it contains is necessarily
currently accurate. This disclaimer is problematic for Mr.
Jurgensen, insofar as Dr. Hamalian has acknowledged that she
once resided and was registered to vote at the River
Vale address, but that she no longer lived there at the time
service was attempted. Thus, there remains the substantial
possibility that the website's data is outdated,
reporting only Dr. Hamalian's former, not
current, address. Mr. Jurgensen's response does not
address this problem (e.g. by presenting evidence
from New Jersey's current voter registration
records establishing Dr. Hamalian's current residence).
Accordingly, the Court would grant Dr. Hamalian's motion
on this ground as well.
having quashed the service on Dr. Hamalian, the Court is left
with Mr. Jurgensen's request for additional time to
effect service upon her. Fed.R.Civ.P. 4(m) sets a presumptive
time limit of 90 days from the commencement of the action for
a plaintiff to complete service of process on each defendant,
and requires a plaintiff to show “good cause” to
extend that deadline further. Here, nearly 300 days - more
than triple the amount of time contemplated by the Federal
Rules - have passed and Dr. Hamalian remains un-served. Mr.
Jurgensen requests additional time but has not offered any
explanation of “good cause” that would justify a
second extension (that is, an extension beyond that already
granted by the Magistrate Judge in December 2018). The Court
understands that Mr. Jurgensen is proceeding pro se,
and the Court grants his filings the liberal construction
that comes with such status. Haines v. Kerner, 404
U.S. 519, 520-21 (1972). The Court is also mindful that it
can be difficult, especially for a layperson, to discern the
correct location at which to serve a party. At the same time,
Mr. Jurgensen theoretically has at his disposal many of the
same tools that attorneys would use to determine where to
effect service, including direct searches of public records
databases, access to credit reports, and even surveillance by
private investigators. Although Dr. Hamalian may not be
particularly helpful in disclosing her residential address so
that Mr. Jurgensen may serve her, there are no particular
obstacles that have prevented Mr. Jurgensen from completing
that task to date. And, notably, Mr. Jurgensen's request
for additional time does not reveal any basis for believing
that his fourth attempt at service will be any more informed
than his prior three attempts. Under such circumstances, the
Court cannot say that Mr. Jurgensen has demonstrated good
cause for an additional extension of time to effect service.
Accordingly, the Court dismisses Mr. Jurgensen's claims
against Dr. Hamalian pursuant to Fed.R.Civ.P. 4(m) and
the Court ADOPTS the Recommendation
(# 90). The various Motions to Dismiss
(# 14, 16, 22, 25, 28, 34, and 54) are
GRANTED, and the claims against each moving
Defendant (and Defendant Jordan Gardner, pursuant to Docket #
52) are DISMISSED. Dr. Hamalian's Motion
to Quash (# 87) is GRANTED
and the claims against Dr. Hamalian are