Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Eugene Wise v. Montez

United States District Court, D. Colorado

July 12, 2019

REUBEN ROBERT EUGENE WISE, Plaintiff,
v.
CHRISTINA MONTEZ, JANIELLE WESTERMIRE, DAVID HARMON, J. ZELLAR, DIXIE SMITH, AMANDA WRIGHT, SEPTIMBER TOPAI, MCCABE, MCDF Sergeant, and MATT LEWIS, Defendants.

          ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Kristen L. Mix United States Magistrate Judge.

         ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

         This matter is before the Court on Defendant Septimber Topai's (“Topai”) Motion to Dismiss [#28][1] (the “Motion”). Plaintiff, who is proceeding pro se, [2] 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.

         I. Background

         Plaintiff 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).

         II. Standard of Review

         “[S]ervice 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.

         The 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 doubt.” Id.

         The “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)).

         III. Analysis

         Pursuant 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.