The opinion of the court was delivered by: Carlos Murguia United States District Judge
This matter is before the court on defendant Martin, Pringle, Oliver, Wallace & Bauer, L.L.P.'s ("MPOWB") Motion to Dismiss for Lack of Proper Service of Process and Suggestions in Support (Doc. 26 and 27, No. 12-2773, and Docs. 22 and 23, No. 12-2794). Defendant MPOWB moves this court for an order dismissing the complaints pursuant to Fed. R. Civ. P. 12(b)(5), for plaintiffs' failure to properly serve an officer or agent of MPOWB. For the reasons set forth below, the court denies defendant MPOWB's motion, quashes service of plaintiffs' original complaint and grants plaintiffs leave to properly serve defendant MPOWB before the deadline set by the court.
I.Factual and Procedural Background
Plaintiff Kristopher Yarbary ("Yarbary") filed a complaint against four defendants -William S. Towles, Dolly Pearl Evans, UNUM Group Corp. ("UNUM"), and MPOWB - on December 10, 2012. Plaintiff Ralph G. Mabone ("Mabone") filed a complaint on December 28, 2012 against these same defendants. Plaintiffs Yarbary and Mabone are two of three sons of the deceased, Kathryn Towles, a former employee of defendant MPOWB whose distribution of life insurance proceeds are in question. Plaintiffs' claims mirror each other. They each make nine claims against defendants: (1) violating their rights with respect to the plan benefits of the deceased, and arguing for the recovery, enforcement, or clarification of plaintiffs' rights to those benefits under 29 U.S.C. § 1132; (2) entering into a joint enterprise under Kansas law; (3) making false statements or concealing facts in violation of 18 U.S.C. § 1027; (4) stealing or embezzling from deceased's employee benefits plan in violation of 18 U.S.C. § 664; (5) breaching defendants' fiduciary duty to plaintiffs as plan beneficiaries under 29 U.S.C. § 1109; (6) breaching a co-fiduciary duty to plaintiffs as plan beneficiaries under 29 U.S.C. § 1105; (7) committing negligence under Kansas law by making false statements or falsely representing facts to plaintiffs; (8) violating Kansas civil conspiracy laws through the administration and distribution of plan benefits to defendant Towles; and (9) committing fraud under Kansas law.
Plaintiff Mabone served summonses on each defendant. A return of service was filed on January 23, 2013 for defendant UNUM, and one for William Towles was filed on January 23 and 24.*fn1
And a return of service for each defendant, MPOWB and Dolly Pearl Evans, was filed on January 30, 2013. There is nothing on the return receipt or tracking information indicating who signed for the summons on behalf of MPOWB. (Doc. 10.)
Plaintiff Yarbary also served summonses on all four defendants. A return of service was filed on February 3, 2013 for all four defendants generally.*fn2 The signature on the certified mail receipt for the summons served on MPOWB was that of Brett Herndon. (Doc. 8 at 2.) Defendant Dolly Pearl Evans filed her answer on February 11, and defendant UNUM filed a motion to consolidate the two cases on February 20. To date, defendant William Towles has not entered an appearance, filed an answer, or otherwise plead.
A certificate of service was filed on February 21 as to MPOWB, signed for by Brian Gray. Neither the agent nor the addressee boxes were checked on the certified mail receipt form. On February 28, David Jack and Benjamin Scott Tschudy entered their appearance on behalf of defendant MPOWB, and filed defendant's current motions to dismiss in the respective cases.
Plaintiff Yarbary filed a motion for leave to amend his complaint on March 11, 2013, which is currently pending before Magistrate Judge David J. Waxse. On March 12, 2013, the undersigned issued an order consolidating plaintiff Yarbary and plaintiff Mabone's cases, designating plaintiff Yarbary's case, No. 12-2773, as the lead case.
Courts liberally construe pleadings filed by pro se plaintiffs. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). It is not the court's duty "to assume the role of advocate for the pro se litigant." Id. However, despite the court's liberal construction, pro se plaintiffs must comply with the fundamental requirements set forth in the Federal Rules of Civil Procedure. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005).
A federal court lacks personal jurisdiction over a party if service on that party was insufficient. Lorenzen v. United States, 236 F.R.D. 553, 557 (10th Cir. 2006) (citation omitted). Plaintiffs bear the burden of establishing personal jurisdiction over and proving the validity of their method of serving defendants. Fed. Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992). When there has been no evidentiary hearing, and the case is still in its pretrial phase, the district court must determine whether personal jurisdiction exists based on affidavits and other materials. Richardson v. Alliance Tire & Rubber Co., Ltd., 158 F.R.D. 475, 478 (D. Kan. 1994) (citing Kennedy v. Freeman, 919 F.2d 126, 128 (10th Cir. 1990)). A court can dismiss for improper service under Rule 12(b)(5). Fisher v. Lynch, 531 F. Supp. 2d 1253, 1260 (D. Kan. 2008). However, it is preferable for the court to quash plaintiff's insufficient service, and to allow plaintiff the opportunity to re-serve defendant if re-service would cure the defect. Id. (citing Pell v. Azar Nut Co. Inc., 711 F.2d 949, 950 n.2 (10th Cir. 1983) (additional citations omitted)).
MPOWB contends that plaintiffs failed to effect proper service of summons under Fed. R. Civ. P. 4(h)(1). Because MPOWB is a partnership, defendant argues that in order to properly serve a partnership, service must be made "by delivering a copy of the summons and complaint to an officer, managing or general agent, or any other agent authorized by appointment or by law to receive service of process." (Doc. 27 at 3) (quoting Fed. R. Civ. P. 4(h)(1).) MPOWB argues that ...