5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 8 TERRI BROOKS-JOSEPH, Case No. C22-1078RSL
9 Plaintiff, ORDER DENYING 10 v. DEFENDANTS’ MOTION TO DISMISS 11 CITY OF SEATTLE, et al., 12 Defendants. 13
14 This matter comes before the Court on defendants’ “Motion to Dismiss Individual 15 Defendants Pursuant to FRCP 12(b)(5)” (Dkt. # 23). The Court, having reviewed the 16 submissions of the parties and the remainder of the record, finds as follows: 17 I. Background 18 On August 8, 2022, plaintiff Terri Brooks-Joseph filed an employment discrimination 19 suit against the City of Seattle and Seattle City Light (collectively, “City”) and individual city 20 employees Susan Davidson, Lourdes Podwall, Britt Luzzi, and Sharon Hunter, along with their 21 respective “John Doe” spouses (collectively “individual defendants”). See Dkt. # 1. A summons 22 for each defendant was issued on August 3, 2022. See Dkt. # 3. No proof of service was made to 23 the Court as required by Federal Rule of Civil Procedure 4(l). See Fed. R. Civ. P. 4(l) (“Except 24 for service by a United States marshal or deputy marshal, proof must be by the server’s 25 affidavit.”). 26 On August 8, 2023, defendants filed a motion to dismiss individual defendants under 27 Rule 12(b)(5), emphasizing that “[p]laintiff has not filed proof of service for the individual 28 defendants.” Dkt. # 23 at 2. 1 On August 11, 2023, plaintiff filed an affidavit of service. See Dkt. # 25. This affidavit 2 indicated that on August 30, 2022, a process server delivered copies of the summons and 3 complaint to the City of Seattle Clerk’s Office at 600 4th Ave, Seattle, WA 98104, where a 4 customer service representative named Stephen Brantzeg “accepted service on behalf of all” 5 defendants. See Dkt. # 34 at 2. On August 20, 2023, plaintiff filed a declaration from plaintiff’s 6 counsel’s assistant, confirming that proof of service was filed with the Court. See Dkt. # 34. 7 On September 1, 2023, defendants filed a reply, arguing that the method of service did 8 not comport with the requirements laid out in Federal Rule of Civil Procedure 4, and that the 9 individual defendants should be dismissed under Federal Rule of Civil Procedure 12(b)(5). Dkt. 10 # 53.1 11 II. Analysis 12 “‘A federal court is without personal jurisdiction over a defendant unless the defendant 13 has been served in accordance with Fed. R. Civ. P. 4.’” Travelers Cas. & Sur. Co. of Am. v. 14 Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (quoting Benny v. Pipes, 799 F.2d 489, 492 (9th 15 Cir. 1986)). “‘Rule 4 is a flexible rule that should be liberally construed so long as a party 16 receives sufficient notice of the complaint.’” Benny, 799 F.2d at 492 (quoting United Food & 17 Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984)). However, 18 “[n]either actual notice, nor simply naming the person in the caption of the complaint, will 19 subject defendants to personal jurisdiction if service was not made in substantial compliance 20 with Rule 4.” Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (internal citations 21 omitted). 22 A party may contest the sufficiency of service of process under Rule 12(b)(5). See Fed. 23 R. Civ. P. Rule 12(b)(5). Once service has been challenged, the plaintiff bears the burden of 24 25 1 Defendants also argue that the Court “should not consider Plaintiff’s filings” because plaintiff failed to follow the Local Rules by filing a declaration and exhibits, rather than the brief in opposition 26 required by LCR 7(b)(2). Dkt. # 53 at 2. Pursuant to the Local Rules, “if a party fails to file papers in opposition to a motion, such failure may be considered by the court as an admission that the motion has 27 merit.” LCR 7(b)(2) (emphasis added). The Court will exercise its discretion to consider the affidavit 28 and declaration filed by plaintiff. 1 showing that service was proper. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). “If a 2 defendant is not served within 90 days after the complaint is filed, the court--on motion or on its 3 own after notice to the plaintiff--must dismiss the action without prejudice against that 4 defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m). However, 5 “if the plaintiff shows good cause for the failure, the court must extend the time for service for 6 an appropriate period.” Id. 7 A. Service Was Not in Accordance with Rule 4 8 Under Rule 4, plaintiffs have multiple options available to them in serving individual 9 defendants. See Fed. R. Civ. P. Rule 4(e). Specifically, an individual within a judicial district of 10 the United States may be served by: 11 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is 12 located or where service is made; or 13 (2) doing any of the following: 14 (A) delivering a copy of the summons and of the complaint to the 15 individual personally;
16 (B) leaving a copy of each at the individual's dwelling or usual place 17 of abode with someone of suitable age and discretion who resides there; or 18
19 (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.2 20 21 Id. Under Washington law, the summons must be delivered to “the defendant personally, or by 22 leaving a copy of the summons at the house of his or her usual abode with some person of 23 suitable age and discretion then resident therein.” RCW § 4.28.080(16). An individual defendant 24 25 2 In order to qualify as an agent for purposes of receiving service of process, “an actual 26 appointment for the specific purpose of receiving process normally is expected. Accordingly, the mere fact that a person acts as defendant’s agent for some purposes does not necessarily mean that the person 27 has authority to receive process.” 4A C. Wright & A. Miller, Federal Practice & Procedure § 1097, at 28 84 (1987). 1 may not be served by leaving the summons and the complaint at his or her place of employment. 2 French v. Gabriel, 57 Wn. App. 217, 225, 788 P.2d 569 (1990), aff’d 116 Wn.2d 584, 806 P.2d 3 1234 (1991).3 4 Here, defendants argue that “plaintiff’s service of process on the individual defendants 5 failed to meet any of the requirements established in FRCP 4.” Dkt. # 53 at 3.
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5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 8 TERRI BROOKS-JOSEPH, Case No. C22-1078RSL
9 Plaintiff, ORDER DENYING 10 v. DEFENDANTS’ MOTION TO DISMISS 11 CITY OF SEATTLE, et al., 12 Defendants. 13
14 This matter comes before the Court on defendants’ “Motion to Dismiss Individual 15 Defendants Pursuant to FRCP 12(b)(5)” (Dkt. # 23). The Court, having reviewed the 16 submissions of the parties and the remainder of the record, finds as follows: 17 I. Background 18 On August 8, 2022, plaintiff Terri Brooks-Joseph filed an employment discrimination 19 suit against the City of Seattle and Seattle City Light (collectively, “City”) and individual city 20 employees Susan Davidson, Lourdes Podwall, Britt Luzzi, and Sharon Hunter, along with their 21 respective “John Doe” spouses (collectively “individual defendants”). See Dkt. # 1. A summons 22 for each defendant was issued on August 3, 2022. See Dkt. # 3. No proof of service was made to 23 the Court as required by Federal Rule of Civil Procedure 4(l). See Fed. R. Civ. P. 4(l) (“Except 24 for service by a United States marshal or deputy marshal, proof must be by the server’s 25 affidavit.”). 26 On August 8, 2023, defendants filed a motion to dismiss individual defendants under 27 Rule 12(b)(5), emphasizing that “[p]laintiff has not filed proof of service for the individual 28 defendants.” Dkt. # 23 at 2. 1 On August 11, 2023, plaintiff filed an affidavit of service. See Dkt. # 25. This affidavit 2 indicated that on August 30, 2022, a process server delivered copies of the summons and 3 complaint to the City of Seattle Clerk’s Office at 600 4th Ave, Seattle, WA 98104, where a 4 customer service representative named Stephen Brantzeg “accepted service on behalf of all” 5 defendants. See Dkt. # 34 at 2. On August 20, 2023, plaintiff filed a declaration from plaintiff’s 6 counsel’s assistant, confirming that proof of service was filed with the Court. See Dkt. # 34. 7 On September 1, 2023, defendants filed a reply, arguing that the method of service did 8 not comport with the requirements laid out in Federal Rule of Civil Procedure 4, and that the 9 individual defendants should be dismissed under Federal Rule of Civil Procedure 12(b)(5). Dkt. 10 # 53.1 11 II. Analysis 12 “‘A federal court is without personal jurisdiction over a defendant unless the defendant 13 has been served in accordance with Fed. R. Civ. P. 4.’” Travelers Cas. & Sur. Co. of Am. v. 14 Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (quoting Benny v. Pipes, 799 F.2d 489, 492 (9th 15 Cir. 1986)). “‘Rule 4 is a flexible rule that should be liberally construed so long as a party 16 receives sufficient notice of the complaint.’” Benny, 799 F.2d at 492 (quoting United Food & 17 Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984)). However, 18 “[n]either actual notice, nor simply naming the person in the caption of the complaint, will 19 subject defendants to personal jurisdiction if service was not made in substantial compliance 20 with Rule 4.” Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (internal citations 21 omitted). 22 A party may contest the sufficiency of service of process under Rule 12(b)(5). See Fed. 23 R. Civ. P. Rule 12(b)(5). Once service has been challenged, the plaintiff bears the burden of 24 25 1 Defendants also argue that the Court “should not consider Plaintiff’s filings” because plaintiff failed to follow the Local Rules by filing a declaration and exhibits, rather than the brief in opposition 26 required by LCR 7(b)(2). Dkt. # 53 at 2. Pursuant to the Local Rules, “if a party fails to file papers in opposition to a motion, such failure may be considered by the court as an admission that the motion has 27 merit.” LCR 7(b)(2) (emphasis added). The Court will exercise its discretion to consider the affidavit 28 and declaration filed by plaintiff. 1 showing that service was proper. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). “If a 2 defendant is not served within 90 days after the complaint is filed, the court--on motion or on its 3 own after notice to the plaintiff--must dismiss the action without prejudice against that 4 defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m). However, 5 “if the plaintiff shows good cause for the failure, the court must extend the time for service for 6 an appropriate period.” Id. 7 A. Service Was Not in Accordance with Rule 4 8 Under Rule 4, plaintiffs have multiple options available to them in serving individual 9 defendants. See Fed. R. Civ. P. Rule 4(e). Specifically, an individual within a judicial district of 10 the United States may be served by: 11 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is 12 located or where service is made; or 13 (2) doing any of the following: 14 (A) delivering a copy of the summons and of the complaint to the 15 individual personally;
16 (B) leaving a copy of each at the individual's dwelling or usual place 17 of abode with someone of suitable age and discretion who resides there; or 18
19 (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.2 20 21 Id. Under Washington law, the summons must be delivered to “the defendant personally, or by 22 leaving a copy of the summons at the house of his or her usual abode with some person of 23 suitable age and discretion then resident therein.” RCW § 4.28.080(16). An individual defendant 24 25 2 In order to qualify as an agent for purposes of receiving service of process, “an actual 26 appointment for the specific purpose of receiving process normally is expected. Accordingly, the mere fact that a person acts as defendant’s agent for some purposes does not necessarily mean that the person 27 has authority to receive process.” 4A C. Wright & A. Miller, Federal Practice & Procedure § 1097, at 28 84 (1987). 1 may not be served by leaving the summons and the complaint at his or her place of employment. 2 French v. Gabriel, 57 Wn. App. 217, 225, 788 P.2d 569 (1990), aff’d 116 Wn.2d 584, 806 P.2d 3 1234 (1991).3 4 Here, defendants argue that “plaintiff’s service of process on the individual defendants 5 failed to meet any of the requirements established in FRCP 4.” Dkt. # 53 at 3. Specifically, 6 defendants argue that “[t]he summons and complaints were not left with the individuals 7 personally, nor [were] the documents left at the Defendants’ dwelling or place of usual abode or 8 left with an authorized agent.” Id. “Instead, the summons and complaint were served to the City 9 of Seattle Clerk’s Office, which is not an authorized agent of the individual defendants.” Id. 10 The Court agrees that delivering the summons and complaint to a customer service 11 representative at City Hall does not meet the requirements set out by Rule 4 for serving 12 individual defendants. 13 B. Rule 4(m) Analysis 14 Having determined that plaintiff’s attempted service on the individual defendants did not 15 comply with the requirements of Rule 4, the Court must determine which of the two “avenues 16 for relief” provided by Rule 4(m) is appropriate here. As the Ninth Circuit has explained, the 17 first avenue provided by Rule 4(m) “is mandatory: the district court must extend time for service 18 upon a showing of good cause. The second is discretionary: if good cause is not established, the 19 district court may extend time for service upon a showing of excusable neglect.” Lemoge v. 20 United States, 587 F.3d 1188, 1198 (9th Cir.2009) (internal citations omitted). 21 To determine when neglect is excusable, the Court conducts the equitable analysis 22 specified in Pioneer by examining “at least four factors: (1) the danger of prejudice to the 23 opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the 24 25 3 This rule has consistently been applied in cases involving government employees and officials. See Galekovich v. City of Vancouver, No. C11-5736BHS, 2012 WL 750445 (W.D. Wash. Mar. 8, 2012) 26 (city employees); Teeman v. Washington, No. C15-3138TOR, 2015 WL 6442735 (E.D. Wash. Oct. 23, 2015) (state employees) Nitardy v. Snohomish Cnty., 105 Wn. 2d 133 (1986) (county executive); 27 Landreville v. Shoreline Community College Dist. 7, 53 Wn. App. 330 (1988) (attorney general); 28 Meadowdale Neighborhood Comm. v. Edmonds, 27 Wn. App. 261 (1980) (mayor). 1 reason for the delay; and (4) whether the movant acted in good faith.” Bateman v. U.S. Postal 2 Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000) (citing Pioneer Inv. Servs. Co. v. Brunswick 3 Assocs. Ltd., 507 U.S. 380, 395 (1993)).4 “In making extension decisions under Rule 4(m) a 4 district court may [also] consider factors ‘like a statute of limitations bar, prejudice to the 5 defendant, actual notice of a lawsuit, and eventual service.’” Efaw v. Williams, 473 F.3d 1038, 6 1041 (9th Cir. 2007) (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 7 1998)). 8 Here, plaintiff’s only response to defendants’ motion to dismiss was to (1) file an 9 affidavit of service, see Dkt. # 25; and (2) file a declaration from plaintiff’s counsel’s assistant, 10 confirming that the affidavit of service was filed, see Dkt. # 34. Accordingly, plaintiff has made 11 no showing of good cause requiring an extension of time for service. 12 Moving to the excusable neglect analysis, the Court notes that the lack of briefing from 13 either defendants or plaintiff on this issue puts it in the unenviable position of attempting to 14 ascertain the parties’ respective positions based on the meager record before it. On the one hand, 15 it has been more than a year since plaintiff’s Complaint was filed, see Dkt. # 1, and plaintiff has 16 failed to provide any reason for her delay or make any request for an opportunity to effect 17 proper service. Notably, plaintiff has been represented by counsel throughout the case. On the 18 other hand, defendants have failed to make any argument as to why dismissal – as opposed to an 19 extension of time to effect service – is appropriate here. See Dkt. # 53. Rather than explaining 20 why an extension of time would unfairly prejudice the individual defendants, defendants simply 21 argue that the Court should dismiss the individual defendants “[d]ue to Plaintiff’s lack of 22 compliance with the Federal Rules of Civil Procedure.” Dkt. # 53 at 3. Finally, the Court notes 23 that it appears that some of plaintiff’s claims would be barred by the relevant statute of 24 25 4 “In addition to excusable neglect, a plaintiff may be required to show the following factors to 26 bring the excuse to the level of good cause: “(a) the party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely 27 prejudiced if his complaint were dismissed.” Lemoge, 587 F.3d at 1198 n.3 (quoting Boudette v. 28 Barnette, 923 F.2d 754, 756 (9th Cir. 1991)). 1 limitations were the Court to dismiss the individual defendants rather than extend the time for 2 effecting service. See Adler v. Fred Lind Manor, 153 Wn. 2d 331, 355 (2004) (explaining that 3 causes of action brought under the Washington Law Against Discrimination are subject to the 4 state’s general three-year statute of limitations under RCW 4.16.080(2)); Dkt. # 1 at 6-7 5 (alleging instances of discrimination that took place in June and July of 2020). 6 Given the relatively short period of delay, the fact that defendants have failed to explain 7 how they would be prejudiced by an extension of time to effect service, and the potential statute 8 of limitations bar plaintiff faces if the Court grants dismissal, the Court exercises its “broad 9 discretion” under Rule 4(m), In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001), and provides 10 plaintiff with a brief extension of time to effectuate proper service of process. 11 III. Conclusion 12 For all the foregoing reasons, defendants’ motion to dismiss is DENIED with 13 qualification. Plaintiff is directed to properly serve defendants Podwall, Davidson, Luzzi, and 14 Hunter in accordance with Rule 4 by September 22, 2023, or suffer dismissal. 15 16 IT IS SO ORDERED. 17 18 DATED this 8th day of September, 2023. 19 20 A
21 Robert S. Lasnik 22 United States District Judge
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