Reno Distributors, Inc. v. West Texas Oil Field Equipment, Inc.

105 F.R.D. 511, 1 Fed. R. Serv. 3d 566, 1985 U.S. Dist. LEXIS 21381
CourtDistrict Court, D. Kansas
DecidedMarch 26, 1985
DocketCiv. A. No. 84-2324
StatusPublished
Cited by7 cases

This text of 105 F.R.D. 511 (Reno Distributors, Inc. v. West Texas Oil Field Equipment, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reno Distributors, Inc. v. West Texas Oil Field Equipment, Inc., 105 F.R.D. 511, 1 Fed. R. Serv. 3d 566, 1985 U.S. Dist. LEXIS 21381 (D. Kan. 1985).

Opinion

MEMORANDUM AND ORDER

EARL E. O’CONNOR, Chief Judge.

This matter is before the court on plaintiff’s motion to assess costs resulting from personal service and plaintiff’s motion to strike the answer of defendants West Texas Oil Field Equipment, Inc., and Humphrey.

We will first address plaintiff’s motion to assess costs resulting from personal service. Plaintiff attempted to serve defendants by mail pursuant to Fed.R.Civ.P. 4(c)(2)(C)(ii). This attempt was unsuccessful and plaintiff then obtained personal service of process on them. Rule 4(c)(2)(D) provides that if a defendant served pursuant to 4(c)(2)(C)(ii) does not complete and return the notice and acknowledgment of receipt of summons within twenty days, “[u]nless good cause is shown for not doing so the court shall order the payment of the costs of personal service by the person served.” It is this provision that plaintiff seeks to enforce.

Plaintiff can recover costs of service under Rule 4(c)(2)(D) only if service was properly available under Rule 4(e)(2)(C)(ii). This is a diversity action and plaintiff asserts jurisdiction over these defendants pursuant to the Kansas long-arm statute, K.S.A. 60-308. Fed.R.Civ.P. 4(f) provides that “process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held, and when authorized by a statute of the United States or by these rules, beyond the territorial limits of that state.” There is no applicable federal statute that would allow service of process outside the state in this case. Therefore, in order to obtain service beyond the territorial limits of the court, there must be authorization in “these rules.” Rule 4(e) provides for service of process on defendants who are not inhab[513]*513itants of or found within the state. In pertinent part it states:

Whenever a statute or rule of court of the state in which the district is held provides (1) for service of a summons, or of a notice, or of an order in lieu of summons upon a party not an inhabitant of or found within the state, . .•. service may ... be made under the circumstances and in the manner prescribed in the [state] statute or rule.

Clearly, service by mail is not a “manner” of service provided by the Kansas statute in this situation. K.S.A. 60-307, -308.

We have previously held in Collier v. Equip. Service Co. d/b/a Serv. Equip., Inc., No. 83-2122 (D.Kan., unpublished, 12/16/83), that service by mail pursuant to 4(c)(2)(C)(ii) is not available for out-of-state service on parties who are neither inhabitants of nor found within the state. That holding would be dispositive of this issue. In light of contrary authority in the district, however, we take this opportunity to reexamine that holding. Such reexamination confirms our earlier conclusion.

In Collier we followed William B. May Co. v. Hyatt, 98 F.R.D. 569 (S.D.N.Y.1983), and San Miguel & Co., Inc. v. International Harvester Export Co., 98 F.R.D. 572, 573 (D.P.R.1983). The opposite result had been reached in Chronister v. Sam Tanksley Trucking, Inc., 569 F.Supp. 464 (N.D.Ill.1983). Judge Rogers has since followed the Chronister decision in two cases: Boggs v. Darr, 103 F.R.D. 526 (D.Kan. 1984), and Smith v. Bache Halsey Stuart Shields, Inc., No. 84-4017 (D.Kan., unpublished, 10/16/84). The Chronister court, however, has since reconsidered its decision. In an unpublished order of December 5, 1983, the court held that service by mail pursuant to 4(c)(2)(C)(ii) is not available for extraterritorial service. That reconsidered decision has since been followed by the same court. Epstein v. Wilder, 596 F.Supp. 793, 797 (N.D.Ill.1984). Aside from Chronister, no other reported decision expressly holds that 4(c)(2)(C)(ii) is available for extraterritorial service. .

Judge Rogers relied heavily on the comments of Professor Siegel contained in Practice Commentaries on FRCP Rule 4, 28 U.S.C.A., pp. 18, 49-50 (Supp.1984). Professor Siegel expressed the view that when Rule 4(e) was amended in 1963 to allow use of state long-arm statutes for extraterritorial service, it was directed to basis of jurisdiction, rather than method of service, and that methods of service contained in Rule 4 itself were also available under Rule 4(e). However, the rule states that when a state long-arm statute is relied on, service “may ... be ... made in the manner prescribed in the [state] statute or rule.” The courts have consistently held that this means that only the state method of service is available. Davis v. Musler, 713 F.2d 907 (2d Cir.1983); Bookout v. Beck, 354 F.2d 823, 824 (9th Cir.1965); Korb v. P.F.R. Corp., 101 F.R.D. 56, 58 (S.D.Ohio 1984); Merz v. Hemmerle, 90 F.R.D. 566, 568 n. 4 (E.D.N.Y.1981); Lisowski v. Schaack, 71 F.R.D. 570, 572 (E.D.Wis. 1976); Tri-County State Bank v. Hertz, 418 F.Supp. 332, 344 (M.D.Pa.1976); Zarcone v. Condie, 62 F.R.D. 563, 566 (S.D.N.Y.1974); Chilcote v. Shertzer, 372 F.Supp. 86, 87 (E.D.Wis.1974); Peterson v. Dickison, 334 F.Supp. 551, 554 (W.D.Pa.1971); Davis v. Gahan, 227 F.Supp. 867, 871 (S.D. N.Y.1964); see also 28 Fed.Proc., L.Ed. § 65:104 (1984); 2 Moore’s Federal Practice 114.32[2] (2d ed. 1984). Therefore, service by mail would be similarly unavailable outside the territorial limits provided in Rule 4(f) unless Congress intended to exempt 4(c)(2)(C)(ii) from the restrictions of 4(f) when it enacted the 1983 amendments.1

[514]*514The intent of Congress in amending Rule 4 is clear. “The amendments to Rule 4 of the Federal Rules of Civil Procedure were intended primarily to relieve United States marshals of the burden of serving summonses and complaints in private civil actions.” Statement by Congressman Edwards of the House Committee on the Judiciary, 128 Cong.Rec. H9848, _(daily ed. Dec. 15, 1982), reprinted in 1982 U.S. Code Cong. & Ad.News 4434, 4437, and 96 F.R.D. 116, 117. Similar statements appear throughout the legislative history of these amendments. There is nothing to indicate an intent on the part of Congress to make mail service under 4(c)(2)(C)(ii) available on an extraterritorial basis. In the absence of legislative intent to the contrary, we must conclude that 4(c)(2)(C)(ii) is subject to the territorial limits contained in 4(f). Because service by mail under 4(c)(2)(C)(ii) could not be used to serve defendants in this case, plaintiff is not entitled to costs for personal service pursuant to Rule 4(c)(2)(D).

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Bluebook (online)
105 F.R.D. 511, 1 Fed. R. Serv. 3d 566, 1985 U.S. Dist. LEXIS 21381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reno-distributors-inc-v-west-texas-oil-field-equipment-inc-ksd-1985.