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Grant v. Alperovich

United States District Court, Ninth Circuit

December 12, 2013

PATRICIA A. GRANT, Plaintiff,
v.
CLAUDIO GABRIEL ALPEROVICH, et al., Defendants.

ORDER DENYING DEFENDANT DR. MICHELE PULLING'S MOTION TO DISMISS

ROBERT S. LASNIK, District Judge.

This matter comes before the Court on "Defendant Dr. Michele Pulling's Motion to Dismiss" (Dkt. # 61). Dr. Pulling requests that the Court dismiss plaintiff's cause of action against her for lack of personal jurisdiction and failure to properly serve a summons and complaint on her within 120 days of filing her complaint. Id . For the reasons set forth below, the Court DENIES Defendant Dr. Michele Pulling's motion to dismiss.[1]

BACKGROUND

The complaint in the above-captioned matter was filed on June 15, 2012. Dkt. # 1. Patricia Grant, the pro se plaintiff, filed an action against Dr. Michele Pulling ("defendant"), among others, for violations of the Americans with Disabilities Act and the Civil Rights Act. Dkt. # 62 at 11. On June 20, 2012, Ms. Grant mailed a copy of the summons and complaint to Gina Marble, whom Ms. Grant describes as an agent for defendant. Dkt. # 74 at 3. Ms. Grant maintains that Gina Marble is an employee and agent of Pacific Medical Centers, where Dr. Pulling worked, and where she received medical care. Id.

DISCUSSION

A. Service of process and personal jurisdiction.

Dr. Pulling asks the Court to dismiss pro se plaintiff Patricia Grant's cause of action against her for insufficient service of process and lack of personal jurisdiction. Dkt. # 61. "Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co. , 484 U.S. 97, 104 (1987). The plaintiff has the burden to prove sufficient service. Wells v. City of Portland , 102 F.R.D. 796, 799 (D. Or. 1984)("Contrary to the position taken by plaintiff, it is the party on whose behalf service is made who has the burden of establishing its validity."). Service may be accomplished under Fed.R.Civ.P. 4(e) by (1) following state law for serving a summons, (2) personally delivering a copy of the summons and complaint to the individual, (3) delivering a copy of each to the individual's dwelling with someone of suitable age and discretion, or (4) delivering a copy of each to an agent authorized by appointment or law to receive service. Dr. Pulling asserts that plaintiff has not served her with a summons or complaint under any of the methods listed under Fed.R.Civ.P. 4(e).

Ms. Grant asserts that service was proper pursuant to state law. Dkt. # 74 at 6. Washington law provides that service must be made "to the defendant personally, or by leaving a of the summons at the house of his or her usual abode with some person of suitable age and discretion then resident therein." RCW 4.28.080(15). In addition, RCW 4.28.080(16) provides:

In lieu of service under subsection (15) of this section, where the person cannot with reasonable diligence be served as described, the summons may be served as provided in this subsection, and shall be deemed complete on the tenth day after the required mailing: By leaving a copy at his or her usual mailing address with a person of suitable age and discretion who is a resident, proprietor, or agent thereof, and by thereafter mailing a copy by first-class mail, postage prepaid, to the person to be served at his or her usual mailing address. For the purposes of this subsection, "usual mailing address" does not include a United States postal service post office box or the person's place of employment.

Ms. Grant attempted to serve Dr. Pulling by mailing a copy of the complaint and summons to an employee of Pacific Medical Centers, where Dr. Pulling is employed. Dkt. # 75 Ex. 2. Under RCW 4.28.080(16), mailing of summons and complaint to the place of employment of the person to be served is insufficient service. To date, Dr. Pulling has not been served personally, and she has not been served at the house of her usual abode. Dkt. # 127.

Ms. Grant also relies on RCW 4.28.080(8) to argue that service was proper. RCW 4.28.080(8) provides that service to an agent authorized by the company or corporation may satisfy the service requirement. However, RCW 4.28.080(8) provides the rule for proper service on a company or corporation, not an individual. Ms. Grant brings this lawsuit against Dr. Pulling in her individual capacity. Dkt. # 62 at 11. Plaintiff's mailing of the summons and complaint to Gina Marble, an employee at Pacific Medical Center, does not constitute service on Dr. Pulling. French v. Gabriel , 57 Wn.App. 217, 225 (1990)("[S]ervice is insufficient when made upon an employee of a person to be served when no evidence is presented to show that the person intended the employee to accept service on the person's behalf."), aff'd, 116 Wn.2d 584 (1991). Ms. Grant has not served Dr. Pulling in accordance with Washington law as provided for by Fed.R.Civ.P. 4(e)(1).

In addition, Gina Marble is not Dr. Pulling's agent under Fed.R.Civ.P. 4(e)(2)(C), which provides that an individual may be served by "delivering a copy of each to an authorized by appointment or by law to receive service of process." To date, service of the summons and complaint has not been made on Dr. Pulling. Dkt. # 127 at 2.

B. Fed.R.Civ.P. 4(m)

Dr. Pulling also requests that the Court dismiss the action because service of the summons and complaint was not completed within 120 days of the filing of the ...


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