United States District Court, D. Colorado
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix United States Magistrate Judge.
BY MAGISTRATE JUDGE KRISTEN L. MIX
matter is before the Court on Defendant Septimber Topai's
(“Topai”) Motion to Dismiss
[#28] (the “Motion”). Plaintiff, who
is proceeding pro se,  filed a Response [#36] in opposition to
the Motion, and Defendant Topai filed a Reply [#38]. The
Motion has been referred to the undersigned for a
recommendation pursuant to 28 U.S.C. § 636(b) and
D.C.COLO.LCivR 72.1(c). See [#29]. The Court has
reviewed the Motion, Response, and Reply, 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
[#28] be GRANTED.
is currently an inmate with the Colorado Department of
Corrections, but throughout the period relevant to this
lawsuit he was a pretrial detainee at Mesa County Jail.
Compl. [#1] at 3-4. Plaintiff brings this lawsuit
against Defendant Topai (and others not parties to the
present Motion) pursuant to the Fourteenth Amendment,
alleging that she failed to provide him adequate medical
care. Id. at 11. Defendant Topai was a member of the
medical staff at Mesa County Jail. Id. at 5. In the
present Motion [#28], she seeks dismissal of all claims
asserted against her pursuant to Fed.R.Civ.P. 12(b)(5).
Standard of Review
of process [Fed. R. Civ. P. 4] provides the mechanism by
which a court . . . asserts jurisdiction over the person of
the party served.” Hukill v. Okla. Native Am.
Domestic Violence Coal., 542 F.3d 794, 797 (10th Cir.
2008) (quoting Okla. Radio Assocs. v. F.D.I.C., 969
F.2d 940, 943 (10th Cir. 1992)). Fed.R.Civ.P. 4(e)(2) permits
service on an individual by:
(A) delivering a copy of the summons and of the complaint to
the individual personally; (B) leaving a copy of each at the
individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e)(1) also allows service by
“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.” Colo. R. Civ. P. 4(e)(1) provides:
Upon a natural person whose age is eighteen years or older by
delivering a copy thereof to the person, or by leaving a copy
thereof at the person's usual place of abode, with any
person whose age is eighteen years or older and who is a
member of the person's family, or at the person's
usual workplace, with the person's supervisor, secretary,
administrative assistant, bookkeeper, human resources
representative or managing agent; or by delivering a copy to
a person authorized by appointment or by law to receive
service of process.
Court may dismiss a complaint for insufficient service of
process pursuant to Fed.R.Civ.P. 12(b)(5). Examples of
insufficient service of process include “serving the
wrong person or serving an individual not authorized to
accept service for a defendant.” Barksdale v.
Connaghan, No. 10-cv-02491-CMA-CBS, 2011 WL 3664382, at
*2 (D. Colo. July 28, 2011), report and recommendation
adopted, No. 10-cv-02491-CMA-CBS, 2011 WL 3796902 (D.
Colo. Aug. 18, 2011). “In opposing a motion to dismiss
for insufficient service of process, plaintiff must make a
prima facie showing that he has satisfied statutory and due
process requirements so as to permit the court to exercise
personal jurisdiction over defendant.” Fisher v.
Lynch, 531 F.Supp.2d 1253, 1260 (D. Kan. 2008).
“The parties may submit affidavits and other
documentary evidence for the Court's consideration, and
plaintiff is entitled to the benefit of any factual
“general rule is that ‘when a court finds that
service is insufficient but curable, it generally should
quash the service and give the plaintiff an opportunity to
re-serve the defendant.'” Gregory v. U.S.
Bankruptcy Court, 942 F.2d 1498, 1500 (10th Cir. 1991)
(quoting Pell v. Azar Nut Co., 711 F.2d 949, 950 n.2
(10th Cir. 1983)), cert. denied, 504 U.S. 941
(1992). Dismissal may nonetheless be proper without
opportunity to cure where proper service would be futile.
Gregory, 942 F.2d at 1500. On a motion to dismiss
for insufficient service, the plaintiff “has the
‘advantage of having the facts resolved in [his]
favor.'” Montgomery, Zukerman Davis, Inc. v.
Diepenbrock, 698 F.Supp. 1453, 1459 (S.D. Ind. 1988)
(quoting Captain Int'l Indus., Inc. v. Westbury,
Chicago, Inc., 416 F.Supp. 721, 722 (N.D. Ill. 1975)).
to Fed.R.Civ.P. 12(b)(5), an action may be dismissed without
prejudice based on insufficient service of process.
Estate of Goodwin by and through Alvarado v.
Connell, 376 F.Supp.3d 1133, 1144 (D. Colo. 2019).
Pursuant to Fed.R.Civ.P. 4(m), “[i]f a defendant is not
served within 90 days after the complaint is filed, the court
. . . must dismiss the action without prejudice against that
defendant or order that service be made within a specified
time.” However, “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).
This determination involves a two-part inquiry: (1)
“[i]f good cause is shown, then an extension of the
time for service of ...