United States District Court, D. Kansas
JEFFREY D. CHAMBERS, Plaintiff,
TIMOTHY A. FIKE, CRETE CARRIER CORP. Defendants.
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
This is a personal injury action filed in state court and removed to this court on the basis of diversity jurisdiction. This matter is now before the court upon defendant Timothy Fike's motion to dismiss pursuant to FED.R.CIV.P. 12(b)(5). Doc. No. 15. Fike contends that he should be dismissed because he has not been properly served with process. If service of process was insufficient, then the court lacks personal jurisdiction over Fike. Blackmon v. U.S.D. 259 Sch. Dist. , 769 F.Supp.2d 1267, 1273 (D.Kan. 2011).
I. FACTUAL BACKGROUND
This case arises from a motor vehicle accident on October 31, 2011 in which, according to the amended complaint, defendant Fike was driving a truck for defendant Crete Carrier Corporation. Plaintiff filed this action in state court on September 5, 2013, misnaming Timothy "Pike" as a defendant. A notice of service was filed on November 7, 2013. Doc. No. 5. It states that "Timothy Pike was served by leaving a copy at Defendant's last known residence 3965 AI 77 Hwy, Ohatchee, AL 36271, on October 30, 2013, and a copy was sent by first class mail addressed to Timothy Pike at [the same address] on October 31, 2013." This case was removed to federal court on October 31, 2013.
An amended complaint was filed on November 8, 2013 correcting defendant Fike's name. According to the return of summons filed December 5, 2013 (Doc. No. 8), defendant Fike was served by "tacking at 3965 AL 77 Hwy, Ohatchee, AL 36271 and mailing a copy to the Defendant's last known address of 3965 AL 77 Hwy, Ohatchee, AL 36271." An affidavit from Crystal Bates has been filed in support of the motion to dismiss. The affidavit states that Crystal Bates has lived at 3965 AL 77 Hwy, Ohatchee, AL 36271 with her family at least since October 1, 2013 and that she has never met defendant Fike and that he has not lived at that address while Bates has lived there. Bates further states in the affidavit that she told this to a process server in the fall of 2013, but he left the paperwork with her anyway.
Defendant Fike filed an answer on December 16, 2013. Doc. No. 9. Among other defenses, defendant Fike asserted insufficient service of process.
II. PLAINTIFF HAS FAILED TO EFFECT SERVICE OF PROCESS UPON DEFENDANT FIKE.
Defendant Fike contends in the motion to dismiss that plaintiff's attempts to serve him fail to comply with federal and state law. Defendant's motion places the burden upon plaintiff to make a prima facie showing that defendant was properly served with process. See Fisher v. Lynch , 531 F.Supp.2d 1253, 259 (D.Kan. 2008).
Plaintiff has responded to the motion to dismiss, first, by contending that plaintiff complied with the Kansas rules of service found in K.S.A. 60-303(d)(1)(C). This statute provides:
If personal or residence service cannot be made on an individual, other than a minor or a disabled person, service is effected by leaving a copy of the process and petition or other document at the individual's dwelling or usual place of abode and mailing to the individual by first-class mail, postage prepaid, a notice that the copy has been left at the individual's dwelling or usual place of abode.
K.S.A. 60-308 provides that service of process may be made on any party outside of Kansas in the same manner as service within Kansas. Those methods are set forth in K.S.A. 60-303. Plaintiff asserts that compliance was achieved because plaintiff twice left a summons and the complaint at Fike's "last known place of dwelling or abode, according to public record" which was "2965 AL 77 Hwy, Ohatchee, AL 36271." Doc. No. 19 at p. 4. Plaintiff further notes that the address plaintiff used to serve process upon Fike was the address listed in an accident report and that the documents mailed to that address were never returned as undeliverable, noting an incorrect address, or with a forwarding address.
It is undisputed that if plaintiff complied with Kansas law as to service of process, then plaintiff complied with the requirements of FED.R.CIV.P. 4(e)(1) which incorporates state rules for service for the state where the district court is located or where service is made.
If the court finds that service was improper under Kansas and federal law, plaintiff asks that he be allowed to amend the complaint to include Fike's proper identity and location and that the court extend the time for service under the provisions of FED.R.CIV.P. 4(m).
In reply, defendant insists that service of process was improper under Kansas law because K.S.A. 60-303 does not permit service upon an individual at his or her "last known" dwelling or abode. Defendant, however, does not respond to plaintiff's request that the ...