United States District Court, D. Kansas
EMMETT V. JORDAN and AMY R. JORDAN, Individually and as natural parents of J V. J., a minor, Plaintiffs,
WYANDOTTE COUNTY UNIFIED GOVERNMENT, et. al., Defendants.
MEMORANDUM AND ORDER
GERALD L. RUSHFELT, Magistrate Judge.
This matter is before the Court on Plaintiffs' Motion to Extend Time for Service of Process, for an Order that Process be Served by the United States Marshall (sic) and for Costs Pursuant to Fed.R.Civ.P. 4(d)(2)(B) (ECF 24). The motion addresses the issue of service of process upon three of the defendants, Carrie Purney-Crider, Carol Jackson, and Heather Wilson. The parties have fully briefed it. For the following reasons, the Court denies the motion as premature and otherwise for lack of merit.
Plaintiffs filed this action on September 16, 2014, in the District Court of Wyandotte County, Kansas. They assert claims, pursuant to 42 U.S.C. § 1983 and under Kansas law. On October 22, 2014, Co-defendants Kansas Department of Revenue, Carrie Purney-Crider, Carol Jackson, Heather Wilson, Nick Jordan and Steve Stotts ("Revenue Defendants") removed the case to this Court. In a Motion to Dismiss (ECF 6), the Revenue Defendants asserted that the Court lacks personal jurisdiction over Purney-Crider, Jackson and Wilson, because they have not been properly served with process. By Memorandum and Order of December 16, 2014 (ECF 22), Judge Lungstrum granted in part and denied in part the Motion to Dismiss. Footnote 2 of the Memorandum and Order also notes as follows:
In their motion to dismiss, defendants Purney-Crider, Jackson and Wilson assert that the court lacks personal jurisdiction over them because they have not been properly served with process. Any argument about service is premature as the 120-day service period set forth in Federal Rule of Civil Procedure 4(m) has not expired and plaintiffs have indicated that they are attempting to obtain personal service on these defendants.
Plaintiffs then filed the instant motion, arguing that they thought service for the Revenue Defendants had been accepted by an employee of the Department of Revenue. When Plaintiffs became aware that service was disputed, the defendants were represented by counsel. Believing that KRPC 4.2 prohibits the attorney for Plaintiffs from contacting defendants directly, he sent waiver of service materials to their attorney on November 24, 2014, with instructions to forward them to the defendants. Plaintiffs received no responses to these waiver requests. The instant motion seeks an extension of time to effectuate service and an order that service be made on these three defendants by the United States Marshal Service ("USMS"). Plaintiffs also seek costs and fees under Fed.R.Civ.P. 4(d)(2)(B).
Pursuant to Fed.R.Civ.P. 4(m), a plaintiff has 120 days to serve a defendant, "[b]ut if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Plaintiffs allege that "the history of the case so far suggests that it is probable that additional time will be needed to finally secure service on Purney-Crider, Jackson, and Wilson."
The Court finds that Plaintiffs have not shown good cause for failure to comply with Rule 4(m) and thus effectuate service. The time for service has not run. The argument about their inability thus far to serve the defendants is premature. The Court finds no reason to believe that Plaintiffs lack sufficient time to obtain proper service of process upon the defendants.
Plaintiffs suggest that Rule 4.2 of the Kansas Code of Professional Conduct prohibits their attorney from personally serving defendants with process. The Rule states as follows:
B. Rule 4.2 Communication with Person Represented by Counsel
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
Plaintiffs suggest that "[t]he Kansas disciplinary rules appear to prohibit direct contact with the represented Defendants, and Plaintiffs' attorney has been so advised by the Disciplinary Administrator." This Court finds no reason to doubt or differ with any suggestion by the Disciplinary Administrator. But neither can the Court assume, without anything of record, that this cursory offering by counsel accurately reflects a considered, official opinion in support of his argument, given the facts submitted with this motion. Counsel has provided no persuasive reason to believe that he is ethically disabled from simply perfecting service of process by hand delivery of papers to the defendants and refraining from any discussion of the case. If he believes he is so disabled, he can rely upon this Memorandum and Order as an enabling "court order" within the meaning of the above-quoted Rule 4.2. Or, as an alternative, Plaintiffs can authorize someone else, "at least 18 years old and not a party, " to perfect service. Fed.R.Civ.P. 4(c)(2).
Plaintiffs instead propose that the Court order service of process to be made by the United States Marshal. They cite Fed. R. Civ. P.4(c)(3). It provides as follows:
(3) By a Marshal or Someone Specially Appointed. At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. Sec. 1915 or as a seaman under 28 U.S.C. Sec. 1916.
Plaintiffs who proceed in forma pauperis are thus entitled to rely on the United States Marshal or deputy ...