Kruska v. Ochoa et al, No. 2:2008cv00054 - Document 258 (D. Ariz. 2010)
Court Description: Memorandum of Decision and ORDER denying 251 Motion to Dismiss Party(see order for details). Scheduling Conference set for 9/13/2010 at 3:00 p.m.. Signed by Judge Stephen M McNamee on 8/9/2010.(TCA)
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1 WO 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 9 JAN E. KRUSKA, 10 Plaintiff, 11 v. 12 13 PERVERTED JUSTICE FOUNDATION INCORPORATED.ORG, et. al., 14 Defendants. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV 08-0054-PHX-SMM MEMORANDUM OF DECISION AND ORDER 16 Before the Court is Defendant Christopher Brocious ( Brocious ) Motion to Dismiss 17 Plaintiff Jan E. Kruska s ( Kruska ) Amended Complaint Pursuant to Rules 4(m) and 18 12(b)(2), (3), and (5). (Doc. 251, Mot. to Dismiss.) Brocious motion is brought based upon 19 insufficient service of process, lack of personal jurisdiction, and improper venue. (Id.) To 20 date, Kruska has not filed a response to Brocious Motion to Dismiss as ordered by the Court 21 (Doc. 253, Ct. Order.)1 After consideration of the issues, the Court finds the following. 22 BACKGROUND 23 On January 10, 2008, Kruska filed suit against a number of individuals and 24 organizations, including Brocious. (Doc. 1, Compl.) In response, Brocious filed a Cross25 Motion to Dismiss for lack of personal jurisdiction, insufficient service of process, and 26 27 28 1 Kruska never responded to Brocious Motion to Dismiss (Doc. 251, Mot. to Dismiss) that was filed on April 16, 2010. The Court ordered that Kruska submit a response by June 11, 2010. (Doc. 253, Ct. Order.) 1 improper venue. (Doc. 68, Cross-Mot. To Dismiss.) The Court granted Brocious Cross- 2 Motion to Dismiss on lack of personal jurisdiction grounds, but granted Kruska leave to file 3 an Amended Complaint. (Doc. 138, Ct. Order.) 4 Kruska s Amended Complaint maintained the claims made in her Original Complaint. 5 (Compare Doc. 1, Compl., at 13-19, with Doc. 140, Am. Compl., at 32-38.) Brocious 6 responded with a second Motion to Dismiss, reasserting lack of personal jurisdiction, 7 insufficient service of process, and improper venue. (Doc. 141, Mot. to Dismiss.) The Court 8 denied Brocious Motion to Dismiss, finding personal jurisdiction on the grounds that 9 Brocious purposefully directed his actions towards the State of Arizona, that Kruska s claims 10 arose out of Brocious forum-related actions, and that the exercise of jurisdiction was 11 reasonable. (Doc. 201, Ct. Order, at 14.) Good cause for failure to timely serve Brocious 12 was found because he had received actual notice of the lawsuit, would suffer no prejudice 13 if a time extension was granted, and Kruska would be severely prejudiced if the complaint 14 was dismissed (Id. at 18-20.) Therefore, Kruska was given an extension until November 6, 15 2009 to effect proper service upon Brocious. (Id. at 21:5-6.) 16 In her Motion to Amend Service, Kruska attempted service on Brocious attorney, 17 Steven G. Ford ( Ford ), under Federal Rule of Civil Procedure 4(e) through e-mail and 18 personal service at his office. (Doc. 203, Mot. to Am. Serv., at 5-6.) Kruska s Motion to 19 Amend Service was denied by the Court on the grounds that proper service was never 20 effectuated under Federal Rule of Civil Procedure 4(d), 4(e)(1), or 4(e)(2). (Doc. 217, Ct. 21 Order, at 2:18-26, 5:3-8.) The Court granted Kruska one final extension of time, until 22 January 4, 2010, to effect proper service upon Brocious. (Id. at 7:5-6.) On April 16, 2010, 23 Brocious filed a Motion to Dismiss the Amended Complaint, again, reasserting insufficient 24 service of process, lack of personal jurisdiction, and improper venue. (Doc. 251, Mot. to 25 Dismiss.) 26 /// 27 /// 28 -2- 1 The Court, having previously ruled on the issues of personal jurisdiction and improper 2 venue (Doc. 201, Ct. Order), now focuses on service issues regarding the Original and 3 Amended Complaints. 4 STANDARD OF REVIEW 5 The Court is permitted to dismiss an action for insufficient service of process. Fed. 6 R. Civ. P. 12(b)(5). In a Motion to Dismiss for insufficient service of process pursuant to 7 Rule 12(b)(5), the plaintiff bears the burden of establishing that service was properly 8 effected. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). DISCUSSION 9 10 I. Original Complaint was Properly Served Under Rule 4.2(c) of the Arizona Rules of Civil Procedure 11 The Court previously ruled that service of Kruska s Original Complaint was improper 12 under Ohio law because she failed to involve the court clerk. See Oh. R. Civ. P. 4.1(A). 13 (Doc. 201, Ct. Order, at 17:3-5.) The Court, however, has not ruled on service of the 14 Original Complaint under Arizona law. Federal Rule of Civil Procedure Rule 4(e)(1) allows 15 an individual to be served by following state law for serving a summons in an action 16 brought in courts of general jurisdiction in the state where the district court is located . . . . 17 Fed. R. Civ. P. 4(e)(1). Rule 4.2(c) of the Arizona Rules of Civil Procedure allows for 18 service by mail. Ariz. R. Civ. P. 4.2(c). 19 When the whereabouts of a party outside the state is known, service may be made by depositing the summons and a copy of the pleading being served in the post office, postage prepaid, to be sent to the person to be served by any form of mail requiring a signed and returned receipt. Service by mail pursuant to this subpart and the return thereof may be made by the party procuring service or by that party s attorney. Upon return through the post office of the signed receipt, the serving party shall file an affidavit with the court stating (1) that the party being served is known to be located outside the state, (2) that the summons and a copy of the pleading were dispatched to the party being served; (3) that such papers were in fact received by the party as evidence by the receipt, a copy of which shall be attached to the affidavit; and (4) the date of receipt by the party being served and the date of the return of the receipt to the sender. 20 21 22 23 24 25 26 Id. 27 /// 28 -3- 1 Kruska filed her affidavit, attached to her Amended Complaint, with the Court on 2 December 16, 2008. On March 6, 2008, knowing Brocious was located outside of Arizona, 3 Kruska mailed her summons and Original Complaint to Brocious home address in Ohio. 4 (Doc. 140, Aff. ¶ 83, Ex. A.) On March 18, 2008, Brocious signed and returned the USPS 5 return receipt, proof that the summons and pleading were dispatched to, and actually received 6 by Brocious. (Id. at ¶ 84, Ex. A.) Kruska s affidavit provides the date of receipt by 7 Brocious, March 18, 2008 (Id. ¶ 84.), but fails to provide the return date of the receipt to 8 Kruska, as required by Rule 4.2(c) of the Arizona Rules of Civil Procedure. 9 Generally, Pro se litigants must follow the same rules of procedure that govern other 10 litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citing United States v. Merrill, 11 746 F.2d 458, 465 (9th Cir. 1984)). However, failure to follow technical procedural 12 requirements does not warrant dismissal where (a) the party . . . to be served personally 13 received actual notice, (b) the defendant[] would suffer no prejudice from the defect in 14 service, (c) there is a justifiable excuse for [the] failure to serve properly, and (d) the plaintiff 15 would be severely prejudiced if his complaint were dismissed. Borzeka v. Heckler, 739 F.2d 16 444, 447 (9th Cir.1984). 17 Brocious received actual notice of the lawsuit when he signed the certified mailing 18 (Doc. 140, Aff., Ex. A.). The Ninth Circuit has held that So long as a party receives 19 sufficient notice of the complaint, Rule 4 is to be liberally construed to uphold service. 20 Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (citing 21 Chan v. Soc'y Expeditions, Inc., 39 F.3d 1398, 1404 (9th Cir. 1994)); see also United Food 22 & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir.1984) 23 ( Rule 4 is a flexible rule that should be liberally construed so long as a party receives 24 sufficient notice of the complaint. ) 25 Kruska s failure to note the return date of the receipt in her affidavit does not have a 26 substantive effect on service of process, and therefore Brocious would suffer no prejudice 27 from the technical defect in service. In Draper v. Coombs, the Ninth Circuit recognize[d] 28 that the plaintiff represented himself and therefore, in evaluating his compliance with the -4- 1 technical rules of civil procedure, we treat him with great leniency. 792 F.2d 915, 924 (9th 2 Cir. 1986) (analogizing to Pembrook v. Wilson, 370 F.2d 37 (9th Cir. 1966)). Kruska, as a 3 pro se litigant, is afforded similar treatment. 4 Kruska sent a true copy of the summons, complaint, and waiver of service via certified 5 mail. When Brocious did not return the waiver form, she hired a process server who made 6 thirteen attempts to serve Brocious in Ohio. (Doc. 140, Am. Compl., at 9-10.) Kruska has 7 vigilantly attempted to serve Brocious (Doc. 201, Ct. Order, at 19:22-27), and would be 8 severely prejudiced if her complaint was dismissed for a mere technical noncompliance with 9 Rule 4.2(c) of the Arizona Rules of Civil Procedure. Since the Borzeka factors balance in 10 favor of Kruska, her technically defective service is not enough to render service of the 11 Original Complaint insufficient. Therefore, Kruska s Original Complaint was properly 12 served under Rule 4.2(c) of the Arizona Rules of Civil Procedure. 13 II. Amended Complaint was Served Properly in Accordance with Rule 5 14 The Court now turns to whether the Amended Complaint (Doc. 140, Am. Compl) was 15 ever properly served upon Brocious. Kruska s Amended Complaint constitutes a pleading 16 filed after the original complaint and therefore, requires service under Federal Rule of Civil 17 Procedure 5. Fed. R. Civ. P. 5(a)(1)(b). Rule 5 also provides that if [a] party is represented 18 by an attorney, service must be made on the attorney. Fed. R. Civ. P. 5(b)(1). Ford, as 19 Brocious attorney, is the appropriate recipient for service of Kruska s Amended Complaint. 20 Under Rule 5, one method of effecting proper service of an amended complaint is to mail[] 21 it to the person s last known address in which event service is complete upon mailing. 22 Fed. R. Civ. P. 5(b)(2)(c). In December of 2008, Kruska mailed her Amended Complaint 23 to Ford s office at Alvarez & Gilbert, PLLC (Doc. 140, Am. Compl., at 44, 63.) Kruska, has 24 thus, effected proper service of her Amended Complaint pursuant to Rule 5. 25 III. Kruska s Amended Complaint Supersedes the Original Complaint 26 Brocious, in his Motion to Dismiss, contends that, by virtue of this Court s Dismissal 27 Order (Doc. 138, Ct. Order), the Original Complaint no longer exists as to Brocious. (Doc. 28 251, Mot. to Dismiss, at 2:24-25.) Brocious further contends that the filing of Kruska s -5- 1 Amended Complaint superseded her Original Complaint (Doc. 251, Mot. to Dismiss, at 3:1- 2 2.) See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (holding that an amended complaint 3 supersedes the original, the latter being treated thereafter as non-existent ). The Court 4 similarly finds that Once amended, the original [complaint] no longer performs any function 5 as a pleading . . . . Bullen v. De Bretteville, 239 F.2d 824, 833 (9th Cir. 1956). Therefore, 6 Kruska s Amended Complaint supersedes her Original Complaint and is treated as 7 nonexistent. 8 In conclusion, Kruska s Amended Complaint, a pleading filed after the original 9 complaint, requires service under Rule 5. The Amended Complaint was properly served 10 when Kruska mailed a copy of her Amended Complaint to Ford s office at Alvarez & 11 Gomez, PLLC, in December of 2008. (Doc. 140, Am. Compl., at 44, 63.) Kruska s 12 Amended Complaint superseded her Original Complaint, therefore the Original Complaint 13 no longer exists. 14 IV. Insufficient Service of Amended Complaint as Argued by Brocious 15 Brocious argues that service of the Amended Complaint under Rule 4 is necessary 16 because the Amended Complaint contains new and additional claims for relief 17 O Callaghan v. Sifre, 242 F.R.D. 69 (S.D.N.Y. 2007) (Doc. 251, Mot. to Dismiss, at 3:16- 18 20.) O Callaghan, and thus, Brocious, relies upon Federal Rule of Civil Procedure 5(a)(2), 19 stating that no service [under Rule 4] is required on a party who is in default for failing to 20 appear. But a pleading that asserts a new claim for relief against such a party must be served 21 on that party under Rule 4. Fed. R. Civ. P. 5(a)(2). 22 A. Brocious has Appeared for Purposes of Federal Rule of Civil Procedure 5(a)(2) 23 In determining whether or not Federal Rule of Civil Procedure 5(a)(2) applies, the 24 Court must first establish if Brocious has appeared. An appearance is defined as A 25 coming into court as a party or interested person, or as a lawyer on behalf of a party or 26 interested person . . . whether by formally participating . . . or by . . . motion . . . . Black s 27 Law Dictionary 113-14 (9th ed. 2009). 28 -6- 1 In Collins v. Finley, the court found a general appearance when Collins . . . moved 2 to dismiss the complaint . . . . 65 F.2d 625 (9th Cir. 1933). Similarly, in Patton v. Adm r 3 of Civil Aeronautics, the court ruled that the defendants made general appearances by filing 4 a motion to dismiss on the ground that the District Court lacked jurisdiction over the subject 5 matter of said action . . . . 217 F.2d 395, 396 (9th Cir. 1954). Similarly, in the present 6 case, Ford, on Brocious behalf, has filed several Motions to Dismiss (Doc. 68, 141, 251, 7 Mots. to Dismiss) partially grounded in lack of jurisdiction claims. These filings demonstrate 8 a clear purpose to defend the suit Direct Mail Specialists, Inc. v. Eclat Computerized 9 Techs., Inc., 840 F.2d 685, 689 (9th Cir. 1988) (quoting Wilson v. Moore & Assocs., Inc., 10 564 F.2d 366, 369 (9th Cir. 1977)), and therefore, constitute the equivalent of a formal court 11 appearance. Wilson, 564 F.2d at 369. Brocious has appeared. He has not defaulted by 12 failing to appear for purposes of Rule 5(a)(2). 13 B. A Party that has Appeared Does Not Require Service Under Rule 4 (As Per Rule 5(a)(2)), Even if New Claims for Relief are Sought 14 Rule 5(a)(2) does not specifically mention whether or not service is required, in 15 accordance with Rule 4, when new claims for relief are asserted against a party that has 16 appeared. Employee Painters Trust v. Ethan Enterprises, Inc., provides that An amended 17 complaint need only be served in the manner provided by Rule 4 when (1) a party is in 18 default for failure to appear and (2) the pleadings assert new or additional claims for 19 relief. 480 F.3d 993, 999 (9th Cir. 2007) (citing Fed. R. Civ. P. 5(a)). The Court in 20 Employee Painters s Trust, held that service of an amended complaint on officers was 21 effective even though the parties and District Court mistakenly believed that Rule 4 governed 22 service of the amended complaint. Id. The court explained that the plaintiff s amended 23 complaint, like Kruska s, was a pleading subsequent to the original complaint, and thus, 24 fell squarely within the provisions of Rule 5. Id. 25 The individual defendants in Employee Painters Trust, like Brocious, were not in 26 default for failure to appear. Id. When the amended complaint was filed in Employee 27 Painters Trust, the defendants had actively participated in the litigation by filing an answer 28 -7- 1 to the original complaint and contesting a disputed counterclaim. Id. Brocious, in a similar 2 fashion, actively participated in the present litigation by filing a Cross-Motion to Dismiss 3 (Doc. 68, Cross-Mot. to Dismiss), as well as a Reply in Support of a Cross-Motion to 4 Dismiss (Doc. 78, Reply in Supp. of a Cross-Mot. to Dismiss), prior to the filing of Kruska s 5 Amended Complaint. (Doc. 140, Am. Compl.) 6 Since the Court has determined that Brocious is not in default for failure to appear, 7 It is . . . immaterial whether or not the amended complaint asserted new or additional 8 claims. Employee Painters Trust, 480 F.3d at 999 (citing Charles Alan Wright & Arthur 9 R. Miller, Federal Practice and Procedure § 1144 (3d. Ed. 2002) (noting that, by appearing 10 in the action the party . . . may become vulnerable to service . . . for new or additional relief 11 under . . . methods set out in Rule 5(b). )). 12 Furthermore, service on Ford is consistent with the basic theory of Rule 5[,] that 13 following an appearance[,] service of papers on the attorney . . . will expedite the 14 adjudication of the case on the merits and, at the same time, constitute sufficient notice to the 15 party to comply with the constitutional requirements of due process. Id. § 1146. Brocious, 16 as a party that has appeared, does not require service of the Amended Complaint on him 17 personally under Rule 4. 18 V. The Court has Personal Jurisdiction over Brocious 19 Brocious continues to argue that this Court lacks personal jurisdiction over him. (Doc. 20 251, Mot. to Dismiss, at 5-7.) However, this issue was ruled on in a previous Court Order, 21 and the Court found personal jurisdiction because Brocious purposefully directed his actions 22 towards the State of Arizona, Kruska s claim arose out of Brocious forum-related actions, 23 and the exercise of jurisdiction over Brocious was reasonable. (Doc. 201, Ct. Order, at 14.) 24 The law of the case doctrine provides that courts do not reexamine an issue 25 previously decided by the same or higher court in the same case. Lucas Auto. Eng g, Inc. 26 v. Bridgestone/Firestone, Inc., 275 F.3d 762, 766 (9th Cir. 2001). However, a court has 27 discretion to depart from the law of the case where (1) the first decision was clearly 28 erroneous; (2) there has been an intervening change of law; (3) the evidence is substantially -8- 1 different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise 2 result. United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997). A district court abuses 3 its discretion when it applies the doctrine of the law of the case without one of these five 4 requisite conditions. Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993). None of the five 5 requisite conditions from Alexander are applicable in the present case. Brocious merely 6 repeats the arguments made in his prior Motion to Dismiss without citing to any new case 7 law or identifying any manifest injustice that would result. Personal jurisdiction over 8 Brocious remains proper for the reasons stated in the previous Court Order. (Doc. 201, Ct. 9 Order, at 14.) 10 VI. Venue is Proper 11 Brocious also continues to argue that venue is improper. (Doc. 251, Mot. to Dismiss, 12 at 7-8.) This Court has already ruled that venue is proper on the grounds that a substantial 13 part of the events . . . giving rise to the claim occurred within Arizona. (Doc. 201, Ct. 14 Order, at 15:4-6) (citing 28 U.S.C. § 1391(b)(2)). The law of the case doctrine is similarly 15 applicable to Brocious argument for improper venue (Doc. 251, Mot. to Dismiss, at 7.) 16 Brocious has asserted no new claims for why venue is improper. Venue remains proper as 17 reasoned in the previous Court Order. (Doc. 201, Ct. Order, at 15:4-6.) 18 CONCLUSION 19 Kruska s Original Complaint was properly served upon Brocious pursuant to Rule 4 20 of the Federal Rules of Civil Procedure. However, the Original Complaint was superseded 21 by Kruska s Amended Complaint, rendering the Original Complaint nonexistent. Kruska s 22 Amended Complaint is subject to service under Rule 5 because it is a pleading filed after the 23 original complaint. Service was properly effected, under Rule 5, when Kruska mailed the 24 Amended Complaint to the defense counsel s office. 25 Brocious argument that Kruska s Amended Complaint is subject to Rule 5(a)(2) fails 26 since Brocious has appeared in this litigation through filing several Motions to Dismiss. 27 Therefore, service of the Amended Complaint in accordance with Rule 4 is unnecessary. 28 -9- 1 In a previous Order, this Court has already ruled that there is personal jurisdiction 2 over Brocious and that venue is proper. Brocious does not present reasons for reassessing 3 this Court s previous ruling on these issues. 4 Accordingly, 5 IT IS HEREBY ORDERED that Defendant Brocious Motion to Dismiss Amended 6 7 8 9 10 11 12 13 14 15 Complaint (Doc. 251, Am. Compl.) is DENIED. IT IS FURTHER ORDERED that Defendant Brocious Motion to Dismiss Amended Complaint is DENIED as to insufficient service of process. IT IS FURTHER ORDERED that Defendant Brocious Motion to Dismiss Amended Complaint is DENIED as to lack of personal jurisdiction. IT IS FURTHER ORDERED that Defendant Brocious Motion to Dismiss Amended Complaint is DENIED as to improper venue. IT IS FURTHER ORDERED that a Scheduling Conference is set for September 13, 2010 at 3:00 p.m. in Courtroom 605. DATED this 9th day of August, 2010. 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 -
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