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Caliber Automotive Liquidators, Inc. v. Jeep

February 1, 2007

CALIBER AUTOMOTIVE LIQUIDATORS, INC. PLAINTIFF,
v.
PAUL SHERRY CHRYSLER DODGE JEEP, DEFENDANT.



The opinion of the court was delivered by: Terence P. Kemp United States Magistrate Judge

JUDGE HOLSCHUH

ORDER

On January 20, 2007, the Court issued an order noting that plaintiff had never filed a return of service and that the docket therefore did not reflect that the complaint had been served on the defendant. That order directed plaintiff to address the issue of service and, if necessary, move for an extension of time within which to perfect service.

Plaintiff has now responded to the order. In its response, plaintiff offers the following statement in support of its position that service has been effected: "The undersigned law firm on behalf of the Plaintiff has served the Defendant via its President, Mr. Sherry on at least 2 occasions since August 2006. (Harvey Affidavit Paragraph 10).... Mr. Sherry was also sent all the appropriate federal court forms including Magistrate Designation, Corporate Disclosure and Waiver of Service. Mr. Sherry's letter stated he was an Officer of the corporation and pursuant to Federal Civil Rule 4(h) service upon an Officer perfects service. The undersigned counsel is also supporting this response with the Affidavit of his Legal Assistant Renee Giannoulis attached hereto as Exhibit B."

Paragraph ten of Mr. Harvey's affidavit states, without detaling how it was done, that "Caliber has served the Defendant via its President, Mr. Sherry, on at least two occasions." The affidavit signed by Ms. Giannoulis states in paragraph two that she "served" the complaint, along with the civil cover sheet, a "Notice of Lawsuit and Request for Waiver of Summons," a "Waiver of Summons," and a corporate disclosure statement upon Paul Sherry Chrysler Dodge on August 17, 2006. The affidavit does not describe how that service occurred (e.g. by mail, personal delivery, or some other method). As the affidavit notes, this "service" occurred eight days before the complaint was filed. The affidavit then states, in paragraph 5, that the same documents were "served" on Mr. Sherry on September 15, 2006. Again, there is no mention made of how these documents were actually transmitted to Mr. Sherry.

Fed.R.Civ.P. 4 governs service of process in civil actions. It provides for a variety of ways in which service can either be effected or waived. Waiver is the preferred procedure, but a waiver of service is effective only when it has actually been returned by the defendant. See Fed.R.Civ.P. 4(d)(requiring the defendant to "timely return[ ] a waiver" and providing that the plaintiff is to file the waiver with the court, after which "the action shall proceed...as if a summons and complaint had been served at the time of filing of the waiver, and no proof of service shall be required"). Rule 4(h) provides that if "a waiver of service has not been obtained and filed" a corporation is served by "delivering a copy of the summons and the complaint to an officer" of the corporation (emphasis added).

Here, there has clearly been no effective service of process on the defendant. Neither of the efforts at service described in the Giannoulis affidavit included the delivery of a summons, and the Court's docket does not reflect that any summons was ever issued. The August 17, 2006 delivery of documents could not have included a summons because no summons can be issued until a complaint has been filed. Fed.R.Civ.P. 4(b). The September 15, 2006 effort included a request for waiver of summons, but no summons was ever issued or sent to Mr. Sherry, and there is no evidence that the defendant ever signed the waiver. Additionally, there is no affirmative evidence that Mr. Sherry was personally served with these documents, although even if he had been, their delivery still would have been ineffective to perfect service because of the lack of a summons. Further, if the documents had included a summons but were mailed instead of delivered personally, that would not have been sufficient, either; the Advisory Committee Notes to the 1993 amendments to Rule 4 clearly indicate that Congress elected not to make "service by mail" effective, but rather provided for the mailing of a request for waiver of service as a preferred alternative to the more costly method of personal service, with the understanding that the mailing of such a request is a "non-judicial act, does not purport to effect service...[and] does not give rise to any obligation to answer the lawsuit [or] provide a basis for a default judgment...."

Plaintiff appears to argue that service was perfected simply because Mr. Sherry was aware of the existence of the lawsuit. The Courts have uniformly rejected such an argument, and the Court of Appeals for the Sixth Circuit has expressly stated that "it will not allow actual knowledge of a lawsuit to substitute for proper service under Fed.R.Civ.P. 4." LSJ Inv. Co., Inc. v. O.L.D., Inc., 167 F.3d 320, 322 (1999). There has been no proper service here.

Under Rule 4(m), this case is subject to dismissal because the complaint was not served within 120 days of its filing. However, the Court has substantial discretion to enlarge the time within which to make service. Although plaintiff has not argued for an extension, presumably because it does not acknowledge that service has not been perfected, the Court will grant a short extension to allow service to be made. Alternatively, if the defendant wishes to avoid being assessed the costs of service, it may waive service. Fifteen days should be sufficient for these purposes. Thus, plaintiff is granted fifteen days within which to obtain service on the defendant or to obtain and file a waiver of service. The failure to do so will result in the dismissal of the case without prejudice under Fed.R.Civ.P. 4(m).

20070201

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