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Donahue v. Probasco & Associates, P.A.

United States District Court, D. Kansas

January 31, 2019



          Teresa J. James U.S. Magistrate Judge

         This matter is before the court on Plaintiff's Motion for Alternative Service and Extension of Time to Serve Defendant and Incorporated Memorandum of Law (ECF No. 25). The motion is fully briefed and the Court is ready to rule.

         I. Procedural History

         Plaintiff filed her complaint on June 28, 2018. A summons was issued to her the same day. On August 8, 2018, E. Lou Bjorgaard Probasco[1] entered an appearance on behalf of Defendant and received a Clerk's extension of time to answer or otherwise respond to the complaint.[2] The Clerk's extension, prepared and approved by Ms. Probasco, noted that the “Summons and Petition were served at the office of Probasco & Associates, P.A. on July 19, 2018.”[3] On August 23, 2018, Defendant filed a motion to dismiss alleging insufficient service of process.[4] Specifically, Defendant submitted an affidavit from Alisia Colbert (“Colbert”), who accepted service of the complaint and summons, stating she was not authorized to receive service on behalf of Defendant.[5] Plaintiff responded with an affidavit from her process server stating the summons was served at Defendant's office on July 19, 2018 upon Colbert, who “was sitting behind the desk and stated [she was] waiting for the service documents and who specifically stated that [she was] authorized to accept service of process on behalf of [Defendant].”[6]

         The District Judge ruled that although Plaintiff believed in good faith she had effectuated proper service, service was not proper.[7] The Court declined to dismiss the action and instead granted Plaintiff an additional 90 days from October 15, 2018 (until January 14, 2019) in which to properly serve Defendant.[8] The Court also ordered that, if Plaintiff did not effectuate proper service upon Defendant by that date, she must show cause as to why the Court should not dismiss the case.[9]

         As discussed in detail below, Plaintiff subsequently attempted to personally serve Defendant fourteen times. Additionally, Plaintiff's counsel contacted or attempted to contact Defendant's counsel on several occasions to inquire whether Defendant's agent would agree to be present for service at her office at a specified date and time of Defendant's choosing, but Defendant never responded to the proposal.[10] After all of these attempts failed, on January 4, 2019, Plaintiff filed her Motion for Alternative Service and Extension of Time to Serve Defendant and Incorporated Memorandum of Law.[11]

         Plaintiff requests an order authorizing her to serve Defendant by certified mail and an additional 30 days to accomplish such service. Defendant opposes the motion, arguing Plaintiff has not shown good cause for either service by certified mail or an extension of time.[12] For the reasons set forth below, the Court will grant Plaintiff's motion.

         II. Applicable Law

         Federal Rule of Civil Procedure 4 governs service in a federal action. Pursuant to Rule 4(h), a corporation, partnership, or other unincorporated association that is subject to suit under a common name, must be served by delivering a copy of the summons and the complaint to an officer, managing or general agent, or any other authorized agent, or in the manner prescribed by Rule 4(e)(1) for serving an individual. Rule 4(e)(1) states that service is accomplished by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.”

         In Kansas, service of process upon corporations, companies, partnerships, and other associations subject to suit in a common name is governed by Kan. Stat. Ann. § 60-304(e), which provides that service must be made by:

“(1) serving an officer, manager, partner or a resident, managing or general agent; (2) leaving a copy of the summons and petition or other document at any of its business offices with the person having charge thereof; or (3) serving any agent authorized by appointment or by law to receive service of process, and if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant. Service by return receipt delivery on an officer, partner or agent must be addressed to the person at the person's usual place of business.”

Pursuant to Kan. Stat. Ann. § 60-303(c)(1):

“Service of process may be made by return receipt delivery, which is effected by certified mail, priority mail, commercial courier service, overnight delivery service or other reliable personal delivery service to the party addressed, in each instance evidenced by a written or electronic receipt showing to whom delivered, the date of delivery, the address where delivered and the person or entity effecting delivery.”

         The primary issue presented here is whether Plaintiff should be granted an extension of time to serve Defendant pursuant to Federal Rule of Civil Procedure 4(m), which states: “If a defendant is not served within 90 days after the complaint is filed, the court . . . must dismiss the action . . . 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 for an appropriate period.” If the plaintiff fails to demonstrate good cause, the court may exercise its discretion in allowing a permissive extension of time for service.[13]

         III. Analysis

         Plaintiff contends Defendant has been avoiding service in this case since July of 2018, stressing once again Plaintiff's delivery of the summons to Colbert.[14] Additionally, Plaintiff has provided a Return of Non-Service[15] showing that her special process server attempted to serve Defendant on fourteen separate occasions between the entry of the Court's October 15, 2018 order and November 20, 2018. Five attempts were made at Defendant's place of business. Five attempts were made at 1431 SW Urish Drive in Topeka, which Plaintiff later discovered is a rental property owned by Defendant's registered agent, Ms. Probasco. And four attempts were made at Ms. Probasco's residence. All fourteen attempts to serve Defendant were unsuccessful.

         Defendant contends Plaintiff's failure to obtain service is due to no fault of Defendant and not the result of willful attempts by Defendant to avoid service. Defendant submits an affidavit from Ms. Probasco stating that she has been out of town during certain periods of time when Plaintiff was attempting to effectuate service, she has not been attempting to avoid service, and has never resided at the 1431 SW Urish Drive rental property.[16] Defendant questions the techniques utilized by Plaintiff's process server and argues that Plaintiff did not make diligent attempts to serve Defendant at its agent's residence or registered office. To support its argument, Defendant points out that it retains another attorney to act as manager while Ms. Probasco is out of the office, but Plaintiff never attempted to serve that “manager agent” or “person responsible and having charge of the office.”[17] Defendant also asserts that Plaintiff's only efforts to effectuate service after November 20, 2018 (even though the court-imposed deadline for obtaining service was not until January 14, 2019) were contacting Defendant's counsel to request that its registered agent avail herself to service, which Defendant states it is under no obligation to do.

         Plaintiff takes strong exception to this last argument. Plaintiff claims she inquired of Defendant's counsel several times, beginning on December 7, 2018 and continuing for three weeks, whether Defendant would agree to a specific date and time when its registered agent would be present in her office so ...

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