Hooks v. Trilogy MedWaste West LLC

• Court: District Court, W.D. Washington
• Decided: February 22, 2022
• Docket: 3:22-cv-05034
• Status: Unknown

Opinion

1 2 3 4

5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 RONALD K. HOOKS, CASE NO. 3:22-cv-05034-RAJ-JRC 11 Petitioner, ORDER TO SHOW CAUSE 12 v. REGARDING SERVICE 13 TRILOGY MEDWASTE WEST LLC, 14 Respondent. 15 16 This matter is before the Court on referral from the District Court. 17 Upon review of the filings in this matter, there is nothing in the record to show that 18 petitioner has perfected personal service of the petition on respondent in accordance with Federal 19 Rule of Civil Procedure 4. See 19 Fed. Proc., L. Ed. § 47:43 (“It is fundamental that . . . a Court 20 has no power to enjoin a person over whom it has not acquired valid in personam jurisdiction. 21 Thus, in order for a district court’s preliminary injunction to be valid, the court must have 22 personal jurisdiction over the defendant. The court must determine whether it has jurisdiction 23 over the party to be enjoined before it can issue a preliminary injunction.” (Internal footnotes 24 1 omitted)); Zepeda v. United States Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985); 2 Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986). It does not appear that the Court has personal 3 jurisdiction over respondent at this time. 4 Petitioner has provided evidence that he caused the petition to be sent to respondent’s

5 manager by email and by mail. Dkt. 12, at 2; Dkt. 15, at 3. However, petitioner has not obtained 6 permission to serve respondent by either mail or e-mail in this matter. Federal Rule of Civil 7 Procedure 4(h)(1)(B) does not provide for service by mail. See, e.g., Block v. Any Merced Inc., 8 No. 121CV01251NONEEPG, 2021 WL 5601503, at *2 (E.D. Cal. Nov. 30, 2021) (citing 9 authorities that this rule does not provide for service by mail). The other provision that could 10 apply, Rule 4(h)(1)(A), refers to Washington state law, which also requires service by personal 11 delivery. See RCW 4.28.080(9); see also Perks v. SLI Techs., Inc., No. 2:20-CV-00095-SMJ, 12 2020 WL 8992482, at *2 (E.D. Wash. July 29, 2020) (explaining that relevant Washington law 13 requires personal delivery of a copy of the summons). 14 This case is an action under the National Labor Relations Act, and there are underlying

15 administrative proceedings occurring before the National Labor Relations Board, in which 16 respondent’s attorneys in this matter also represent respondent. See Dkt. 15-1, at 2. Petitioner 17 has also provided evidence that he caused the petition and other documents to be sent to these 18 two attorneys by methods including hand delivery. Dkt. 10, at 2. However, at the time that 19 petitioner brought suit in this matter, service had to be accomplished on respondent itself—not 20 on attorneys who represent respondent in another matter. See Fed. R. Civ. P. 5(b); see also 4B 21 Fed. Prac. & Proc. Civ. § 1145 (4th ed.) (“[S]ervice on a party is valid—indeed it is obligatory— 22 if that party does not have an attorney[.]”); Pochiro v. Prudential Ins. Co. of Am., 827 F.2d 1246, 23 1249 (9th Cir. 1987) (citing authorities and explaining that service on an attorney who represents

24 1 a party in another matter is inadequate). Although respondent has actual notice of this lawsuit, 2 actual notice is not enough to excuse a failure to comply with Rule 4. See Direct Mail 3 Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). 4 Finally, the Court observes that Federal Rule of Civil Procedure 4 requires service of

5 copies of the complaint and the summons, but it does not appear that petitioner has obtained a 6 summons (see Fed. R. Civ. P. 4(a)) to serve on respondent or requested and obtained a valid 7 waiver of the service of a summons from respondent. This, too, appears to render service 8 inadequate in this matter. 9 The Court observes that the 90-day time period for petitioner to properly serve this matter 10 has not yet expired. Pursuant to the Court’s discretion regarding matters of service (see, e.g., 11 Henderson v. United States, 517 U.S. 654, 662 (1996)) and to secure the “just, speedy, and 12 inexpensive determination” of this action (see Fed. R. Civ. P. 1), the Court orders petitioner to 13 show cause as follows: 14 On or before March 11, 2022, petitioner shall file a brief, affidavit, or other document

15 explaining how it has validly perfected service on respondent in accordance with applicable 16 federal and Washington State law. 17 Dated this 22nd day of March, 2022. A 18 19 J. Richard Creatura Chief United States Magistrate Judge 20

21 22 23 24