United States District Court, D. Kansas
MEMORANDUM AND ORDER
Murguia United States District Judge.
Banamex, S.A. moves to dismiss Counts II, IV, V, VI, VII, and
VIII of the complaint by plaintiffs Eloy Velasco Briseno and
Jana Harris Velasco, solely with respect to defendant, for
three reasons: lack of personal jurisdiction under Federal
Rule of Civil Procedure 12(b)(2), insufficient process under
Rule 12(b)(4), and insufficient service of process under Rule
12(b)(5). (Doc. 12.)
are United States citizens residing in Johnson County,
Kansas. Defendant Banamex, S.A. is referenced in paragraph 17 of
the complaint as “a Mexican company that can be found
at 2029 Century Park E #42, Los Angeles, California
90067.” (Doc. 1, at 6.) Defendant Banamex, S.A. is
named as one of sixteen defendants to the above-captioned
a case about a timeshare scam involving multiple persons and
business entities in Mexico and the United States, multiple
wire transfers by plaintiffs, and plaintiffs' efforts to
recover their money. Nine other named defendants are relevant
to identify and distinguish each of the wire transfers in
this case from the facts involving defendant Banamex, S.A.
and the alleged conspiracy. These nine defendants, as named
in the complaint and later referenced by plaintiffs, are:
Mario Morales Ortiz Pena (“Mario”), Banco
Mercantil del Norte, S.A. (“Banco Norte”),
Banorte USA Corporation (“Banorte USA”), Banorte,
Prhometeus Consulting Group (“PRHometeus”), VHM
and Company (“VHM”), Gaberi Consultores S.C.
(“Gaberi”), BBVA Bancomer, S.A.
(“BBVA”), and El Banco Nacional de Mexico
about June 2018, persons purporting to act for Marketing and
Management Solutions, LLC (“M&M”) contacted
plaintiffs about potential sale of their timeshare in Mexico.
This party represented to plaintiffs that the buyer was
defendant Mario. Plaintiffs entered into an agreement (the
“Agreement”) allegedly with M&M and defendant
Mario for the sale of their timeshare for $230, 250.00.
Between June and August 2018, persons claiming to be M&M
and other entities requested plaintiffs pay various fees,
taxes, insurance, costs, and miscellaneous charges to
complete the sale of plaintiffs' timeshare. Plaintiffs
paid these purported expenses across five different wire
transfers totaling $101, 547.00:
1. On June 15, 2018, $5, 325.00 to Banco Norte and/or Banorte
USA and/or Banorte with beneficiary defendant PRHometeus.
2. On June 22, 2018, $29, 932.50 to Banco Norte and/or
Banorte USA and/or Banorte with beneficiary defendant
3. On July 2, 2018, $4, 325.00 to defendant Banco Nacional
and/or defendant Banamex, S.A. with beneficiary defendant
4. On July 19, 2018, $53, 966.50 to defendant BBVA, with
beneficiary defendant Gaberi.
5. On July 23, 2018, $7, 998.00; to defendant BBVA, with
beneficiary defendant Gaberi.
date, no defendant has purchased plaintiffs' timeshare,
and no defendant has returned plaintiffs' money. Only the
third wire transfer involves defendant Banamex, S.A. All
other involvement by defendant is found in plaintiffs'
conspiracy allegations and recitation of other Counts.
evaluating challenges to personal jurisdiction, the court
assumes true all well-pleaded (plausible, non-conclusory, and
non-speculative) facts alleged in plaintiff's complaint.
Dudnikov v. Chalk & Vermillion Fine Arts, Inc.,
514 F.3d 1063, 1070 (10th Cir. 2008) (citation omitted).
Factual disputes in parties' affidavits are resolved in
plaintiffs' favor. Id. (citing FDIC v.
Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992)).
When personal jurisdiction is based on a conspiracy theory,
“the plaintiff must offer more than bare allegations
that a conspiracy existed, and must allege facts that would
support a prima facie showing of a conspiracy.”
Melea, Ltd. v. Jawer SA, 511 F.3d 1060, 1069 (10th
Cir. 2007); see Stoldt v. City of Toronto, 678 P.2d
153, 156 (Kan. 1984) (listing the elements of civil
conspiracy in Kansas).
extent that the court considers any exhibits or other records
outside the pleadings, Federal Rule of Civil Procedure 12(d)
only converts to summary judgment those motions made pursuant
to Rule 12(b)(6). The Tenth Circuit has applied Rule 12(d) in
limited circumstances to motions under Rule 12(b)(1) when the
jurisdictional question is intertwined with the merits of the
case. Wheeler v. Hurdman, 825 F.2d 257, 259 (10th
Cir. 1987). The defenses of Rule 12(b)(2), 12(b)(4), and
12(b)(5) are generally not proper grounds for summary
judgment. 5C Charles Alan Wright et al., Fed. Prac &
Proc. Civ. § 1366 (3d ed., Apr. 2019 update); see
also Nichols v. United States 796 F.2d 361, 366 (10th
Cir. 1986) (stating in the 12(b)(1) context that “Rule
12(b) does not authorize conversion whenever matters outside
the pleadings are accepted by the court.”).
12(b)(4) and 12(b)(5)
12(b)(4) motion constitutes “an objection to the form
of process or the content of the summons, ” while a
motion made under Rule 12(b)(5) “challenges the mode or
lack of delivery of a summons and complaint.”
Oltremari by McDaniel v. Kan. Soc. & Rehab.
Serv., 871 F.Supp. 1331, 1349 (D. Kan. 1994) (citations
omitted). When the defendant is allegedly misnamed in the
summons or does not exist, a motion to dismiss may be
properly made under either Rule 12(b)(4) or Rule
plaintiff must validly serve the defendant with process
before the court can exercise personal jurisdiction over that
defendant. See Jenkins v. City of Topeka, 136 F.3d
1274, 1275 (10th Cir. 1998) (“Effectuation of service
is a precondition to suit . . . .”). When a defendant
challenges service of process, the plaintiff has the burden
of proving the sufficiency of service. Ammon v.
Kaplow, 468 F.Supp. 1304, 1309 (D. Kan. 1979). A signed
return of service is prima facie evidence of valid service,
but can be overcome by strong and convincing evidence that
the service or return was inaccurate. Oltremari, 871
F.Supp. at 1349 (adopting Report and Recommendation of
Rushfelt, Mag. J.). The court may consider documentary
evidence and weigh affidavits when evaluating the sufficiency
of the plaintiff's service on the defendant.
Ammon, 468 F.Supp. at 1309.
Federal Rule of Civil Procedure 4(h)(1), a domestic or
foreign corporation must be served “in a judicial
district of the United States” either (1) pursuant to
state law in the jurisdiction where the action is brought or
service is made; or (2) by delivering a copy of the summons
and complaint to an agent authorized to accept service of
process. Kansas allows service by return receipt delivery
through certified mail. Kan. Stat. Ann. § 60-303 (2010).
“Generally, when the Court finds that service is
insufficient but curable, it should quash service and give
plaintiff an opportunity to reserve defendant.”
Fisher v. Lynch, 531 F.Supp.2d 1253, 1269 (D. Kan.
2008). However, where it appears unlikely that service can be
cured, the court has broad discretion to dismiss the action.
See Pell v. Azar Nut Co., 711 F.2d 949, 950 n.2
(10th Cir. 1983).