The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RONALD-KENNETH STRASSER, Case No. 3:19-cv-1051-SI
Plaintiff, ORDER
v.
STATE OF OREGON, et al.,
Defendants.
Michael H. Simon, District Judge.
Plaintiff Ronald-Kenneth Strasser (Strasser), representing himself, brings this lawsuit
against 26 state and local officials and entities. Although Strasser did not effectuate service of
process, thirteen defendants (the State Defendants) appeared and filed a motion to dismiss
Plaintiff’s Fourth Amended Complaint (ECF 52).1 The Court found that the State Defendants
waived the defense of defective service of process and then addressed on the merits the State
Defendants’ motion to dismiss. On November 5, 2021, the Court granted the State Defendants’
1 The State Defendants are: the State of Oregon; Governor Kate Brown; Shelley
Hoffman; Katy Coba; State Judge Robert Herndon; State Judge Jeffrey Jones; State Judge
Thomas Rastetter; Debbie Spradley; John Foote; Christopher Heywood (misspelled as
“Haywood” in the Plaintiff’s caption); Samantha Olson; the Oregon Department of Public Safety
Standards and Training; and “all Clerks of Clackamas County Court and their associates.”
motion, dismissing Plaintiff’s claims with prejudice. ECF 68. The Court ruled that Plaintiff’s
claims against many of the State Defendants were barred by various immunity doctrines. Id. For
the claims not barred by immunity doctrines, the Court found that Plaintiff had failed to state a
claim upon which relief could be granted, that Plaintiff previously had been given detailed
explanations describing the substantive deficiencies in his previous complaints, and that Plaintiff
had been given ample opportunities to cure those deficiencies. Id. Because Plaintiff was unable
to cure the deficiencies after several attempts, the Court deemed further leave to amend futile. Id.
at 13. The Court subsequently denied Strasser’s motion for reconsideration of that opinion.
ECF 88; ECF 91.
In a previous order, the Court had identified by name the 13 other defendants that
Plaintiff had not served with process and provided Strasser significant additional time to
effectuate service of process on those additional 13 defendants.2 ECF 56; see also ECF 72
(further extending the time to effectuate service of process); ECF 81 (further extending the time
to effectuate service of process); ECF 84 (further extending the time to effectuate service of
process). Instead of serving these unserved 13 defendants, Plaintiff purported to serve all
defendants in this case, including the many State Defendants that the Court previously had
dismissed from the case with prejudice.3 A dismissal with prejudice, however, is final. Plaintiff
2 These unserved defendants are: Craig Roberts, Clackamas County Sheriff; Dave M.
Ellington, Clackamas County Under Sheriff; Daniel Joseph O'Keefe, Clackamas County Sheriff
Deputy; Greg Keppler, Clackamas County Sheriff Deputy; Eric Machado, Clackamas County
Risk and Safety Manager; David O’Shaughnessy, Captain; Corey R. Smith, Sergeant; Morgan
Guthner, Clackamas County Sheriff Deputy; Donald Krupp, County Administrator; Laurel
Butman, Chief Executive Officer Deputy; Ken Humberston, Commissioner; Oregon State
Sheriff's Association; and Sheriff Pat Garrett, 2017 OSSA President & Washington County
Sheriff. ECF 56 n.2.
3 Plaintiff also purported to serve new parties whom he did not name as defendants in the
Fourth Amended Complaint but simply called “respondents” whom he alleged had relevant
information relating to the case.
may not revive claims against defendants dismissed with prejudice merely by attempting to serve
them with an amended pleading.
On April 23, 2022, Plaintiff filed a motion for entry of default and default judgment
against all defendants originally named in this case, including the State Defendants dismissed
with prejudice.4 ECF 96. The State Defendants responded by filing an opposition to the motion
for default and by filing a motion for a partial judgment under Rule 54(b) of the Federal Rules of
Civil Procedure. The State Defendants argue that partial judgment is warranted in this case to
avoid further harassment from Plaintiff and because the applicable immunity defenses are subject
to interlocutory appeal so any immediate appeal would not prejudice any party. For the few
defendants against whom claims were dismissed with prejudice based on Plaintiff’s failure to
state a claim, the State Defendants argue that the law is straightforward (no respondeat superior
liability is available under 42 U.S.C. § 1983), any appeal would proceed expeditiously, and there
would be no undue prejudice.
Plaintiff responded that he objects to the entry of a partial judgment because he would
prefer to amend his complaint to allege that the state officials are not properly in office and thus
not deserving of immunity. This argument, however, fails to understand the effect of a dismissal
with prejudice. Plaintiff may not amend to add new allegations relating to the State Defendants
because his claims against these defendants have been dismissed with finality. Further, Plaintiff
already alleged that the State Defendants are “not properly in office” in paragraph 11 of his
Fourth Amended Complaint (ECRF 47),5 so there is nothing new in adding such an allegation in
4 Plaintiff also moved for default against the “respondents.”
5 Plaintiff already alleged that: “All Defendants purport to have official capacities, but are
not properly in office, for lack of a properly signed and filed Oath of Office and for lack of a
complete unbroken chain of documents connecting them to an Organic Law, does anyone
disagree?” ECF 47 at 4 (¶ 11).
a Fifth Amended Complaint. Additionally, Plaintiff made this same argument in his motion for
reconsideration, which the Court already rejected. ECF 88; ECF 91.
Before resolving the State Defendants’ motion for partial judgment, the Court considers
Plaintiff’s motion for entry of default. In his motion for default and entry of default judgment,
Plaintiff states that he is entitled to both entry of default and default judgment because he served
all defendants (and respondents) by FedEx. He makes no other argument and provides no other
evidence. His motion, therefore, fails on its face as a motion for entry of default judgment.
With respect to a motion for entry of default against the defendants for whom the Court
has not dismissed his claims with prejudice, the Court considers Plaintiff’s proof of service.
Plaintiff’s process server asserts that he served the Fourth Amended Complaint on all defendants
by FedEx. ECF 94. There are several problems, however, with this purported service of process.
The first is that Plaintiff does not indicate that a summons was included in the service but only
states that the Fourth Amended Complaint was served on the defendants. Service of process must
include a summons issued by the Clerk of the Court.6 See Fed. R. Civ. P. 4(c)(1).
The second problem is that Plaintiff does not explain how he obtained the addresses he
served or why those addresses are the correct addresses for service on each specific defendant.
The third problem is the method of service. Sending pleadings by FedEx, by itself, is not
sufficient service of process. Sufficiency of process is governed by Rule 4 of the Federal Rules
of Civil Procedure. Rule 4(m) requires that a defendant be served within 90 days or a court “must
dismiss the action without prejudice against that defendant or order that service be made within a
specified time.” Rule 4(e) explains how to serve an individual within the United States, and
6 There are summonses included with the Proof of Service, but they have not been issued
by the Clerk of the Court and are thus ineffective. Further, it is unclear whether they were even
included in the purported service delivery.
includes that following state law within the jurisdiction where service is made or the action is
filed constitutes sufficient service.
Under Oregon law, service may be made by:
personal service of true copies of the summons and the complaint
upon defendant or an agent of defendant authorized to receive
process; substituted service by leaving true copies of the summons
and the complaint at a person’s dwelling house or usual place of
abode; office service by leaving true copies of the summons and
the complaint with a person who is apparently in charge of an
office; service by mail; or service by publication.
Or. R. Civ. P. 7D(1). Service by mail is further defined as:
When service by mail is required or allowed by this rule or by
statute, except as otherwise permitted, service by mail shall be
made by mailing true copies of the summons and the complaint to
the defendant by first class mail and by any of the following:
certified, registered, or express mail with return receipt requested.
For purposes of this paragraph, “first class mail” does not include
certified, registered, or express mail, return receipt requested, or
any other form of mail that may delay or hinder actual delivery of
mail to the addressee.
Id. 7D(2)(d)(i).
When serving an individual by mail, service is considered complete “provided the
defendant or other person authorized to receive service signs a receipt for the certified,
registered, or express mailing, in which case service shall be complete on the date on which the
defendant signs a receipt for the mailing.” Id. 7D(3)(a)(i). Service by mail is considered
complete “on the day the defendant, or other person authorized by appointment or law, signs a
receipt for the mailing, or 3 days after the mailing if mailed to an address within the state, or 7
days after the mailing if mailed to an address outside the state, whichever first occurs.”
Id. 7D(2)(d)(ii). For a business association, including professional corporations and cooperatives,
service by mail is alternate service that may be used only if a registered agent, officer, or director
cannot be found in the county in which the action is filed. Id. 7D(3)(b)(ii).
Thus, service by mail under Oregon law requires sending the pleadings both by first class
mail and by certified, registered, or express mail with return receipt requested. Additionally, the
defendant or some other authorized person must sign for the documents. Plaintiff did not use any
of the methods described in the rule. He instead sent the Fourth Amended Complaint by FedEx,
with some of the deliveries not even requiring a signature (see, e.g., ECF 94 at 48, 50, 56). Even
if the FedEx deliveries that obtained signatures can be equated to certified, registered, or express
mail with return receipt requested, Plaintiff would still have needed to send another copy by first
class mail. Further, none of the signatures that were obtained and presented to the Court are from
the defendants themselves.7 Plaintiff also failed to explain how or why the addresses to which the
documents were sent are the appropriate addresses for the defendants and how or why the signers
of each FedEx delivery are the appropriate recipients of the documents or authorized signers on
behalf of the specific defendant purportedly being served. Nor did Plaintiff describe for the non-
individual defendants why alternate service was appropriate.
Given all the deficiencies in Plaintiff’s purported service of process, Plaintiff has not
shown that he properly effectuated service on the defendants that have not yet appeared in this
action. “Pro se litigants must follow the same rules of procedure that govern other litigants.”
Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997). “So long as a party
receives sufficient notice of the complaint, Rule 4 is to be liberally construed to uphold service.
However, neither actual notice nor simply naming the defendant in the complaint will provide
personal jurisdiction without substantial compliance with Rule 4.” Travelers Cas. & Sur. Co. of
7 Plaintiff filed printouts from FedEx’s tracking webpage and some of the printouts state
“signature on file” instead of identifying the signer. See, e.g., ECF 94 at 34, 36, 38, 40, 42, 44,
and 58. The Court considers those to be unsigned because Plaintiff did not provide proof of the
signature.
Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (cleaned up). Plaintiff did not substantially
comply with Rule 4 or Oregon law, incorporated by reference into Rule 4.
The Court has given Plaintiff nearly eight months to effectuate service of process and
repeatedly advised Plaintiff that failure timely to effectuate proper service of process would
result in the Court dismissing this case. Plaintiff failed to properly effectuate service of process.
Thus, the Court dismisses this case under Rule 4(m). The claims against all defendants who have
not yet appeared are dismissed without prejudice. Because the Court dismisses the claims against
the non-appearing defendants, the Court will enter a judgment on all claims. Thus, the State
Defendants’ motion for partial judgment is denied as moot.
CONCLUSION
The Court DENIES Plaintiff’s motion for leave to file an amended complaint (ECF 101)
and Emergency Motion to Wait for the Fifth Amended Complaint to Rule on the Motion for
Judgment (ECF 102). The Court DENIES Plaintiff’s Motion for Entry of Default (ECF 96). The
Court DENIES AS MOOT the State Defendant’s Motion for Partial Judgment (ECF 98) because
the Court will enter a complete judgment in this case, allowing Plaintiff to appeal if he so
chooses. Because Plaintiff has failed timely and properly to effectuate service of process on the
defendants who have not yet appeared despite being given nearly eight months and repeated
warnings that this case would be dismissed if there was not proper service of process, this case is
dismissed under Rule 4(m) of the Federal Rules of Civil Procedure against those remaining
defendants.
IT IS SO ORDERED.
DATED this 24th day of May, 2022.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge