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USNR, LLC v. Hartford Accident & Indemnity Co.

United States District Court, W.D. Washington, Tacoma

May 9, 2017

USNR, LLC, Plaintiff,


          ROBERT J. BRYAN United States District Judge

         THIS MATTER comes before the Court on Defendant Employers Insurance Company of Wausau's Motion to Dismiss Complaint for Declaratory Judgment. Dkt. 21. The Court has considered the motion, Plaintiff USNR, LLC's Response, Defendant Wausau's Reply, and the remainder of the file herein. Dkts. 24, 25.


         Defendant Wausau seeks dismissal without prejudice on two grounds. First, Defendant Wausau seeks dismissal for insufficient service of process under Fed.R.Civ.P. 12(b)(5), on the basis that Plaintiff USNR did not serve the Summons and Complaint on Defendant Wausau within 90 days of filing, as required by Fed.R.Civ.P. 4(m). Instead, Defendant Wausau opines, Plaintiff USNR first attempted service of process on January 18, 2017, a date 96 days after filing. Because Plaintiff USNR attempted service of process through the Washington Office of the Insurance Commissioner (WOIC), which further delayed the process, Defendant Wausau was not served any pleadings until March 20, 2017. Dkt. 21 at 7-10. Since the filing of Defendant Wausau's motion, Plaintiff USNR has apparently served on Defendant Wausau an amended complaint. Defendant Wausau objects to the timeliness of the service and says that the service makes it unclear when responsive pleadings are due. Dkt. 25 at 3.

         Second, Defendant Wausau seeks dismissal for insufficient process under Fed.R.Civ.P. 12(b)(4) on the basis that the Summons does not adhere to two requirements of Fed.R.Civ.P. 4(a): (1) the Summons is directed to a person, “Susan E. Stead, agent for Employers of Insurance of Wausau, ” rather than “directed to the defendant”; and (2) the Summons contains a blank space where it should contain the name and address of Plaintiff USNR's attorney. Dkt. 21 at 10-14.

         Besides seeking dismissal for insufficient service of process under Fed.R.Civ.P. 12(b)(5) and insufficient process under Fed.R.Civ.P. 12(b)(4), the motion also invokes Fed.R.Civ.P. 12(b)(2) under the theory that this Court would lack personal jurisdiction over defendants who have not been personally served. Dkt. 25 at ¶ 4. See Dkt. 21 at 1.

         Plaintiff USNR concedes that it “lacks a legally recognized excuse for its neglect” in timely serving Defendant Wausau, but nonetheless seeks more time to complete service of process. Dkt. 24 at 2. Regarding the Fed.R.Civ.P. 4(a) errors identified with the Summons, Plaintiff USNR acknowledges the errors, but requests that the Court quash the pleadings, rather than dismiss them.


         a. Insufficient service of process under Fed.R.Civ.P. 12(b)(5): untimeliness under Fed.R.Civ.P. 4(m).

         Fed. R. Civ. P. 12(b)(5) allows defendants to seek dismissal for insufficient service of process. Service of process may be insufficient where it is untimely. “The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m).” Fed.R.Civ.P. 4(c)(1). Fed.R.Civ.P. 4(m) provides:

If a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service[.]”

Id. (emphasis added).

         “Rule 4(m) explicitly permits a district court to grant an extension of time to serve the complaint after [the] 120[1]-day period.” Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). The rule permits an extension “even in the absence of good cause, ” because the 90 days for service “operates not as an outer limit subject to reduction, but as an irreducible allowance.” Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007), quoting Henderson v. United States, 517 U.S. 654, 661 (1996) (internal quotations omitted). In exercising their discretion, courts may consider factors, such as the prejudice to the defendant, actual notice of the lawsuit, and length or reason for delay. Id. 473 F.3d at 1041. See also, In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001) (“We find it unnecessary . . . to articulate a specific test that a court must apply”).

         Because neither one of Plaintiff USNR's attempts at service of process fell within the 90 days prescribed by Fed.R.Civ.P. 4(m), the issue before the Court is the appropriate remedy for the insufficient service of process. Defendant Wausau acknowledges that it has actual notice of the lawsuit. Defendant has not made a strong showing that extending the time for service, rather than dismissing the case without prejudice, would cause prejudice, other than to point to (1) the costs associated with the filing of this motion and (2) the lack of clarity about its responsive pleadings due date. However, there are also costs associated with re-filing the case, and the responsive pleadings due date can easily be clarified by fixing the answer deadline to a date certain. Plaintiff USNR has not provided a legally justifiable excuse for the delay, but importantly, it has not attempted to manufacture one, and ...

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