Jandreski v. Smith's Food and Drug Centers, Inc.

D. Nevada

Jandreski v. Smith's Food and Drug Centers, Inc.

DecidedMay 28, 2024

Docket2:24-cv-00835

StatusUnknown

This text of Jandreski v. Smith's Food and Drug Centers, Inc. (Jandreski v. Smith's Food and Drug Centers, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Jandreski v. Smith's Food and Drug Centers, Inc., (D. Nev. 2024).

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Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 KELLIE JANDRESKI, ) 4 ) Plaintiff, ) Case No.: 2:24-cv-00835-GMN-MDC 5 vs. ) ) ORDER GRANTING MOTION TO 6 SMITH’S FOOD & DRUG CENTERS, INC., ) DISMISS 7 ) Defendant. ) 8 ) ) 9 10 Pending before the Court is the Motion to Dismiss (“Mot. Dismiss”), (ECF No. 8), filed 11 by Defendant Smith’s Food and Drug Centers, Inc. Plaintiff Kellie Jandreski did not file a 12 Response, and the deadline to do so has passed. 13 For the reasons discussed below, the Court GRANTS Defendant’s Motion to Dismiss 14 because Plaintiff failed to timely serve Defendant under Federal Rule of Civil Procedure (“Fed. 15 R. Civ. P.”) 4 and Nevada Rules of Civil Procedure (“NRCP”) 4. 16 I. BACKGROUND 17 This case arises from Defendant’s s alleged discrimination and retaliation against its 18 employee, Plaintiff Kellie Jandreski. (See generally Compl., Ex. 1 to Pet. Removal, ECF No. 1- 19 1). After filing this lawsuit in state court, Plaintiff attempted to complete service of process by 20 mailing a copy of the Complaint and Summons to Defendant. (Pl.’s Service Attempts at 1, Ex. 21 B to Decl. Kathryn Lisby to Ex. 4 to Mot. Dismiss, ECF No. 8-4). Plaintiff’s Summons was 22 not signed by the clerk of court, nor did it bear the Nevada court’s seal. (Summons at 2–3, Ex. 2 23 to Mot. Dismiss, ECF No. 8-2). Defendant later removed this action based on federal question 24 jurisdiction, (Pet. Removal, ECF No. 1), and filed the instant Motion to Dismiss, (ECF No. 8). 25 1 II. LEGAL STANDARD 2 “A federal court does not have jurisdiction over a defendant unless the defendant has 3 been served properly under [Fed. R. Civ. P.] 4.” Direct Mail Specialists v. Eclat Computerized 4 Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988); see also Murphy Bros., Inc. v. Mitchell Pipe 5 Stringing, Inc., 526 U.S. 344, 350 (1999) (“Service of process, under longstanding tradition in 6 our system of justice, is fundamental to any procedural imposition on a named defendant.”). 7 Because Plaintiff originally filed her Complaint in state court, Defendant’s Motion must be 8 decided under Nevada law and thus the Court looks to the NRCP. Lee v. City of Beaumont, 12 9 F.3d 933, 936–37 (9th Cir. 1993) (noting that “[t]he issue of the sufficiency of service of 10 process prior to removal is strictly a state law issue”), overruled on other grounds by Cal. Dep’t 11 Water Res. v. Powerex Corp., 53 F.3d 1087, 1091 (9th Cir. 2008). NRCP 4(d)(2) requires 12 service of process be made upon a foreign corporation or non-resident entity’s agent or 13 representative in-state or, if no such agent or representative is available in-state, then upon the 14 secretary of state or deputy secretary of state. Further, NRCP 4(e)(2) permits personal service 15 out-of-state. 16 When applying the NRCP, the Court may look to the corresponding Fed. R. Civ. P. for 17 guidance. Am. Home Assurance Co. v. The Eighth Judicial Dist., 147 P.3d 1120, 1238 n.28 18 (Nev.2006); Lawler v. Ginochio, 584 P.2d 667, 668 (Nev. 1978). In federal court, Fed. R. Civ. 19 P. 4 governs the service of process. When a party brings a motion to dismiss for insufficiency

20 of service of process under Fed. R. Civ. P. 12(b)(5),1 the court may choose to dismiss the action 21 or quash service. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 22 1354 (3d ed. 2008). Courts have broad discretion to dismiss the action or quash service. Id. 23 However, the Court should be mindful that if the defendant likely can be served, quashing 24

25 1 Under the Nevada Rules of Civil Procedure, motions to dismiss for insufficiency of process are authorized under Rule 12(b)(4). 1 service avoids duplicative action on the part of the plaintiff. Id. Thus, mindful that plaintiffs 2 should not be denied their day in court because of a technical oversight, federal courts 3 frequently retain the action and permit the plaintiff an opportunity to re-serve the plaintiff. See 4 Surowitz v. Hilton Hotel Corp., 383 U.S. 363, 373 (1966) (“[T]he basic purpose of the Federal 5 Rules is to administer justice through fair trials, not through summary dismissals.”). 6 III. DISCUSSION 7 At the outset, the Court notes that Plaintiff failed to respond to the Motion to Dismiss. 8 “On its own, Plaintiff’s failure to file points and authorities in opposition to a motion 9 constitutes consent that the motion be granted.” Gonzalez v. Bank of America, N.A., No. 2:13- 10 cv-00460, 2013 WL 3877708, at *2 (D. Nev. July 24, 2013) (citing Local Rule 7-2(d)). 11 Notwithstanding Plaintiff’s failure to oppose the Motion, the Court addresses the merits of 12 Defendant’s request to dismiss Plaintiff’s case. Defendant argues that Plaintiff failed to 13 effectuate service. (See generally Mot. Dismiss). Specifically, Defendant advances that 14 delivery of a complaint and summons by mail are not permitted ways to effectuate service 15 under the Fed. R. Civ. P. and NRCP.2 (Id. 5:22–6:19). The Court agrees. 16 Plaintiff did not effectuate service by mailing the Complaint and Summons. “Service by 17 mail is not permitted under Nevada or federal law.” Crain v. Mercedez Benz of USA, No. 2:22- 18 cv-00806, 2022 WL 1922075, at *1 (D. Nev. Nov. 10, 2022) (citing cases). Because Defendant 19 has not been properly served, the Court does not have jurisdiction over it.

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22 2 Defendant also contends that Plaintiff’s Summons violated the NRCP and Fed. R. Civ. P. because it was not 23 signed by the state clerk of court and did not bear the Nevada court’s seal. (Id. 4:8–21). “[S]ervice of a valid summons is necessary before the district court may exercise personal jurisdiction over the defendant, and to be 24 valid a summons must indeed be signed by the clerk.” Silbaugh v. Chao, 942 F.3d 911, 914 (9th Cir. 2019) (citing Omni Cap. Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Because Plaintiff’s Summons was 25 not signed by the clerk of court and did not bear the Nevada court’s seal, the Court also finds that process was insufficient on this basis. See Ondrisek v. City of Henderson, No. 2:23-cv-00185, 2024 WL 216547, at *2 (D. Nev. Jan. 18, 2024) (finding the same). 1 Having concluded that service was insufficient, the Court must decide whether to dismiss 2 || Defendant or quash service and grant Plaintiff an opportunity to serve them. See Stevens v. Sec. 3 || Pac. Nat’l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976). “Given Plaintiff's pro se status, 4 || dismissal is too harsh a remedy at this stage.” Fuentes v. National Tr. Co. Deutsche Bank, No. 5 |} 22-cv-04953, 2023 WL 2278701, at *4 (N.D. Cal. Feb. 27, 2023). The Court finds it 6 || appropriate to quash service and to grant Plaintiff sixty days to serve Defendant. Accordingly, 7 || Defendant’s Motion to Dismiss is GRANTED and Plaintiff is hereby given sixty days to obtain 8 || proper process and complete service on Defendant.

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1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 KELLIE JANDRESKI, ) 4 ) Plaintiff, ) Case No.: 2:24-cv-00835-GMN-MDC 5 vs. ) ) ORDER GRANTING MOTION TO 6 SMITH’S FOOD & DRUG CENTERS, INC., ) DISMISS 7 ) Defendant. ) 8 ) ) 9 10 Pending before the Court is the Motion to Dismiss (“Mot. Dismiss”), (ECF No. 8), filed 11 by Defendant Smith’s Food and Drug Centers, Inc. Plaintiff Kellie Jandreski did not file a 12 Response, and the deadline to do so has passed. 13 For the reasons discussed below, the Court GRANTS Defendant’s Motion to Dismiss 14 because Plaintiff failed to timely serve Defendant under Federal Rule of Civil Procedure (“Fed. 15 R. Civ. P.”) 4 and Nevada Rules of Civil Procedure (“NRCP”) 4. 16 I. BACKGROUND 17 This case arises from Defendant’s s alleged discrimination and retaliation against its 18 employee, Plaintiff Kellie Jandreski. (See generally Compl., Ex. 1 to Pet. Removal, ECF No. 1- 19 1). After filing this lawsuit in state court, Plaintiff attempted to complete service of process by 20 mailing a copy of the Complaint and Summons to Defendant. (Pl.’s Service Attempts at 1, Ex. 21 B to Decl. Kathryn Lisby to Ex. 4 to Mot. Dismiss, ECF No. 8-4). Plaintiff’s Summons was 22 not signed by the clerk of court, nor did it bear the Nevada court’s seal. (Summons at 2–3, Ex. 2 23 to Mot. Dismiss, ECF No. 8-2). Defendant later removed this action based on federal question 24 jurisdiction, (Pet. Removal, ECF No. 1), and filed the instant Motion to Dismiss, (ECF No. 8). 25 1 II. LEGAL STANDARD 2 “A federal court does not have jurisdiction over a defendant unless the defendant has 3 been served properly under [Fed. R. Civ. P.] 4.” Direct Mail Specialists v. Eclat Computerized 4 Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988); see also Murphy Bros., Inc. v. Mitchell Pipe 5 Stringing, Inc., 526 U.S. 344, 350 (1999) (“Service of process, under longstanding tradition in 6 our system of justice, is fundamental to any procedural imposition on a named defendant.”). 7 Because Plaintiff originally filed her Complaint in state court, Defendant’s Motion must be 8 decided under Nevada law and thus the Court looks to the NRCP. Lee v. City of Beaumont, 12 9 F.3d 933, 936–37 (9th Cir. 1993) (noting that “[t]he issue of the sufficiency of service of 10 process prior to removal is strictly a state law issue”), overruled on other grounds by Cal. Dep’t 11 Water Res. v. Powerex Corp., 53 F.3d 1087, 1091 (9th Cir. 2008). NRCP 4(d)(2) requires 12 service of process be made upon a foreign corporation or non-resident entity’s agent or 13 representative in-state or, if no such agent or representative is available in-state, then upon the 14 secretary of state or deputy secretary of state. Further, NRCP 4(e)(2) permits personal service 15 out-of-state. 16 When applying the NRCP, the Court may look to the corresponding Fed. R. Civ. P. for 17 guidance. Am. Home Assurance Co. v. The Eighth Judicial Dist., 147 P.3d 1120, 1238 n.28 18 (Nev.2006); Lawler v. Ginochio, 584 P.2d 667, 668 (Nev. 1978). In federal court, Fed. R. Civ. 19 P. 4 governs the service of process. When a party brings a motion to dismiss for insufficiency

20 of service of process under Fed. R. Civ. P. 12(b)(5),1 the court may choose to dismiss the action 21 or quash service. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 22 1354 (3d ed. 2008). Courts have broad discretion to dismiss the action or quash service. Id. 23 However, the Court should be mindful that if the defendant likely can be served, quashing 24

25 1 Under the Nevada Rules of Civil Procedure, motions to dismiss for insufficiency of process are authorized under Rule 12(b)(4). 1 service avoids duplicative action on the part of the plaintiff. Id. Thus, mindful that plaintiffs 2 should not be denied their day in court because of a technical oversight, federal courts 3 frequently retain the action and permit the plaintiff an opportunity to re-serve the plaintiff. See 4 Surowitz v. Hilton Hotel Corp., 383 U.S. 363, 373 (1966) (“[T]he basic purpose of the Federal 5 Rules is to administer justice through fair trials, not through summary dismissals.”). 6 III. DISCUSSION 7 At the outset, the Court notes that Plaintiff failed to respond to the Motion to Dismiss. 8 “On its own, Plaintiff’s failure to file points and authorities in opposition to a motion 9 constitutes consent that the motion be granted.” Gonzalez v. Bank of America, N.A., No. 2:13- 10 cv-00460, 2013 WL 3877708, at *2 (D. Nev. July 24, 2013) (citing Local Rule 7-2(d)). 11 Notwithstanding Plaintiff’s failure to oppose the Motion, the Court addresses the merits of 12 Defendant’s request to dismiss Plaintiff’s case. Defendant argues that Plaintiff failed to 13 effectuate service. (See generally Mot. Dismiss). Specifically, Defendant advances that 14 delivery of a complaint and summons by mail are not permitted ways to effectuate service 15 under the Fed. R. Civ. P. and NRCP.2 (Id. 5:22–6:19). The Court agrees. 16 Plaintiff did not effectuate service by mailing the Complaint and Summons. “Service by 17 mail is not permitted under Nevada or federal law.” Crain v. Mercedez Benz of USA, No. 2:22- 18 cv-00806, 2022 WL 1922075, at *1 (D. Nev. Nov. 10, 2022) (citing cases). Because Defendant 19 has not been properly served, the Court does not have jurisdiction over it.

20 21

22 2 Defendant also contends that Plaintiff’s Summons violated the NRCP and Fed. R. Civ. P. because it was not 23 signed by the state clerk of court and did not bear the Nevada court’s seal. (Id. 4:8–21). “[S]ervice of a valid summons is necessary before the district court may exercise personal jurisdiction over the defendant, and to be 24 valid a summons must indeed be signed by the clerk.” Silbaugh v. Chao, 942 F.3d 911, 914 (9th Cir. 2019) (citing Omni Cap. Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Because Plaintiff’s Summons was 25 not signed by the clerk of court and did not bear the Nevada court’s seal, the Court also finds that process was insufficient on this basis. See Ondrisek v. City of Henderson, No. 2:23-cv-00185, 2024 WL 216547, at *2 (D. Nev. Jan. 18, 2024) (finding the same). 1 Having concluded that service was insufficient, the Court must decide whether to dismiss 2 || Defendant or quash service and grant Plaintiff an opportunity to serve them. See Stevens v. Sec. 3 || Pac. Nat’l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976). “Given Plaintiff's pro se status, 4 || dismissal is too harsh a remedy at this stage.” Fuentes v. National Tr. Co. Deutsche Bank, No. 5 |} 22-cv-04953, 2023 WL 2278701, at *4 (N.D. Cal. Feb. 27, 2023). The Court finds it 6 || appropriate to quash service and to grant Plaintiff sixty days to serve Defendant. Accordingly, 7 || Defendant’s Motion to Dismiss is GRANTED and Plaintiff is hereby given sixty days to obtain 8 || proper process and complete service on Defendant. 9 CONCLUSION 10 IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, (ECF No. 8), is 11 ||}GRANTED. Plaintiff is granted 60 days, until July 29, 2024, to effect service of process on 12 Defendant. Failure to return the summons showing proof of service will result in automatic 13 || dismissal pursuant to Rule 4(m) without further notice. 14 The Clerk is kindly requested to provide Plaintiff a copy of this Order to both the email 15 || and physical addresses she provided on her Complaint (ECF No. 1-1) and also to the address 16 || Defendant provided for her: 17 Kellie Janderski 9100 West Flamingo Road 18 Las Vegas, NV 89147 ? kelliejandreski@gmail.com 20 Kellie Janderski 21 9100 West Flamingo Road, #2040 Las Vegas, NV 89147

3 DATED this 28 day of May, 2024. 24 25 Gloria M. rro, District Judge UNITED SLATES DISTRICT COURT Page 4 of 4

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