“A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under [Rule] 4.”
How later courts described this case
- “A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under [Rule] 4.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION
KELLY A. BARNETT,
Plaintiff, Case No. 6:22-cv-00312-MK
OPINION AND
v. ORDER
CAROLYN HIGHT MAXWELL,
Defendant.
_________________________________________
KASUBHAI, United States Magistrate Judge:
Plaintiff Kelly A. Barnett, proceeding pro se, brings this cause of action against
Defendant Carolyn Hight Maxwell. Compl., ECF No. 1. Plaintiff moves for approval of
alternative service on Defendant. Pl.’s Mot. Alt. Serv. 1, ECF No. 5 (“Pl.’s Mot.”).
LEGAL STANDARD
Without proper service, a court cannot exercise jurisdiction over a defendant. See Direct
Mail Specialists, Inc. v. Eclat Computerized Tech., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (“A
federal court does not have jurisdiction over a defendant unless the defendant has been served
properly under [Rule] 4.”). Federal Rule of Civil Procedure 4(e) authorizes four methods of
service on an individual:
(1) 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; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint
to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or
usual place of abode with someone of suitable age and
discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e).
Under state law, the Oregon Rules of Civil Procedure (“ORCP”) provide that:
Summons shall be served, either within or without this state, in any
manner reasonably calculated, under all the circumstances, to
apprise the defendant of the existence and pendency of the action
and to afford a reasonable opportunity to appear and defend . . .
Service may be made, subject to the restrictions and requirements
of this rule, by the following methods: 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.
ORCP 7(D)(1).
DISCUSSION
Defendant Carolyn Hight Maxwell is an individual subject to Fed. R. Civ. P. 4(e).
Plaintiff moves for a court order allowing alternative service on Defendant through her insurance
company, Liberty Mutual/SAFECO. Pl.’s Mot. 1, ECF No. 5. Alternatively, or in addition to the
aforementioned method, Plaintiff moves for a court order allowing alternative service by e-mail
to two of Defendant’s known e-mail addresses and an e-mail address that appears to belong to an
employee of Defendant’s insurance company. Pl.’s Mot. 6, ECF No. 5-1.
Here, Plaintiff alleges that Defendant “has actively evaded service.” Pl.’s Mot. 1, ECF
No. 5. Plaintiff submits that she attempted to serve Defendant when Plaintiff “hired professional
services, performed paid background checks, skip tracing, and basic Local Usage Detail tracing
to ensure [Defendant] was still in Connecticut in the vicinity of West Haven.” Pl.’s Mot. 2, ECF
No. 5-1. Plaintiff represents that her hired process servers were unable to deliver a copy of the
complaint to Defendant personally and were unable to identify Defendant’s “usual place of
abode.” Id. Plaintiff attempted to serve Defendant at three addresses in Oregon and was unable to
locate an address for Defendant in Connecticut. See Decl. of Kelly A. Barnett 1, ECF No. 6
(“Barnett Decl.”). Plaintiff further represents that Defendant has “fail[ed] to keep her address
current as is statutorily required by the Connecticut Department of Motor Vehicles and per the
Nurse Practice Acts in Oregon and Connecticut Board of Nursing Department of Public Health.”
Pl.’s Mot. 2, ECF No. 5-1. For these reasons, Plaintiff requests approval of alternative service
methods. Id. at 6.
At this time, the Court finds that Plaintiff’s proposed methods are not reasonably
calculated to apprise Defendant of the existence and pendency of the action and to afford a
reasonable opportunity to appear and defend. The Court does not find service on Defendant’s
insurance company appropriate at this time. Plaintiff may renew her motion and propose other
alternative methods of service, such as service by publication, in addition to service by e-mail to
Defendant’s known e-mail addresses.
CONCLUSION
For the above reasons, Plaintiff’s motion for alternative service (ECF No. 5) is DENIED.
DATED this 19th day of July 2022.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI (He / Him)
United States Magistrate Judge