Fussell v. Sun Vista RV Resort LLC

• Court: District Court, D. Arizona
• Decided: January 13, 2025
• Docket: 2:24-cv-03414
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Paul A Fussell, et al., No. CV-24-03414-PHX-KML

10 Plaintiffs, ORDER

11 v.

12 Sun Vista RV Resort LLC, et al.,

13 Defendants. 14 15 On December 4, 2024, plaintiffs Paul A. Fussell and Eilleen Fussell filed their 16 complaint against defendants Sun Vista RV Resort LLC (“Sun Vista”) and Ronald Thayer. 17 (Doc. 1.) The Fussells did not serve that complaint but on December 31, 2024, Sun Vista 18 filed its answer. (Doc. 5.) The court then ordered the parties to develop a Rule 26(f) Joint 19 Case Management Report and attend a scheduling conference on February 7, 2025. (Doc. 20 8.) 21 On January 6, 2025, the Fussells filed two documents: a “Notice Regarding 22 Premature Notice of Appearance” and a “Motion to Strike Defendants’ Premature Filings.” 23 (Docs. 9, 10.) Those documents argue no defendant has been served and defendants 24 “cannot bypass service requirements through voluntary appearance.” (Doc. 10 at 2.) The 25 Fussells state they plan to file an amended complaint and request the court strike Sun 26 Vista’s answer in order to, among other things, maintain a “clear record.” (Doc. 10 at 3.) 27 In general, “one becomes a party officially, and is required to take action in that 28 capacity, only upon service of a summons or other authority-asserting measure stating the 1 || time within which the party served must appear and defend.” Murphy Bros. v. Michetti 2|| Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). But “a defendant may waive service,” 3 || which Sun Vista appears to have done by filing its answer. Mayes v. Am. Hallmark Ins. Co. 4|| of Texas, 114 F.4th 1077, 1079 (9th Cir. 2024). The Fussells have not cited, and the court || has not located, any authority stating a defendant cannot file its answer before being || formally served. But in a related context, the Ninth Circuit recently concluded a defendant need not await service of process before opting to remove a case from state to federal court. 8 || Jd. The Fussells are correct that service of process is often crucial to the beginning of a case. But once the Fussells filed their suit, Sun Vista was free to waive service and || immediately begin its defense. 11 Accordingly, 12 IT IS ORDERED the Motion to Strike (Doc. 10) is DENIED. The deadline for the 13 || parties to file the Rule 26(f) report remains the same and the scheduling conference shall proceed as scheduled. 15 Dated this 13th day of January, 2025. 16 17 Vy, op A. Gf 18 NN Honorable Krissa M. Lanham 19 United States District Judge 20 21 22 23 24 25 26 27 28

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