United States District Court, D. Hawaii
MARIA D. SOMMERS, Plaintiff,
KAY OKAMOTO; ROY OKAMOTO; OKAMOTO REALTY, Defendants.
(1) FINDINGS AND RECOMMENDATION TO DENY DEFENDANTS
KAY OKAMOTO, ROY OKAMOTO, AND OKAMOTO REALTY'S MOTION TO
DISMISS, AND (2) ORDER DENYING PLAINTIFF MARIA D.
SOMMERS'S MOTION TO ENTER DEFAULT JUDGMENT
KENNETH J. MANSFIELD UNITED STATES MAGISTRATE JUDGE.
October 28, 2016, Defendants Okamoto Realty, Roy Okamoto
(“R. Okamoto”), and Kay Okamoto (K.
Okamoto”) (collectively, “Defendants”)
filed a Motion to Dismiss the Complaint for Insufficient
Service of Process (“Motion to Dismiss”).
See ECF No. 4-1. Plaintiff Maria D. Sommers
(“Plaintiff” or “Sommers”) filed an
opposition to the Motion to Dismiss on November 1, 2016.
See ECF No. 5. Defendants filed a reply to
Plaintiff's opposition on November 14, 2016. See
ECF No. 9.
November 30, 2016, Plaintiff filed a Motion to Enter Default
Judgment. See ECF No. 13. Defendants did not file an
opposition to the Motion to Enter Default Judgment.
Court finds both of these motions suitable for disposition
without a hearing pursuant to Rule 7.2(d) of the Local Rules
of Practice of the United States District Court for the
District of Hawaii. After reviewing the parties'
submissions and the record established in this action, the
Court RECOMMENDS that the District Court DENY Defendants'
Motion to Dismiss and exercise its discretion to quash
service. Should the District Court adopt this Court's
recommendation to quash service, this Court further
RECOMMENDS that Plaintiff be given 30 days from the date the
District Court issues its order to properly serve Defendants.
In addition, the Court DENIES Plaintiff's Motion to Enter
October 14, 2016, Plaintiff filed a Complaint which alleges
that Defendants violated the Racketeer Influenced and Corrupt
Organizations Act under 18 U.S.C. § 1964. See
ECF No. 1. On or about October 14, 2016, Plaintiff mailed the
Complaint and Summons via certified mail to Okamoto Realty.
See ECF Nos. 4-5; ECF No. 5-1. The name and address
on the certified mail envelope and Certificate of Service
attached to the Complaint is Okamoto Realty, 3388th Street,
Lanai City, Hawaii. Although this is the correct business
address for Okamoto Realty, it is not the address of either
of the two individual defendants. Id. The individual
defendants claim that they were never served with the Summons
and Complaint. See ECF Nos. 4-2, 4-3 (Declarations
of R. Okamoto and K. Okamoto). Okamoto Realty argues that
Plaintiff's attempt to serve it via certified mail is
improper. See ECF No. 4. Accordingly, Defendants
seek to dismiss the Complaint for failure to make sufficient
process of service.
Motion to Dismiss for Insufficient Service of Process
claim that the Complaint should be dismissed due to lack of
proper service under the Federal Rules of Civil Procedure
(“FRCP”). See ECF No. 4. The Court notes
that Plaintiff has the option of serving Defendant pursuant
to the FRCP or the Hawaii Rules of Civil Procedure
(“HRCP”). See Fed. R. Civ. P. 4(e)(1);
4(h)(1)(A). It is not clear whether Plaintiff intended to
serve Defendants under the FRCP or the HRCP. Because the
federal and Hawaii Rules applicable to the disposition of
this matter are substantively identical, however, there is no
conflict which might affect the Court's decision. For
purposes of this Findings and Recommendation, the Court shall
analyze the application of both the FRCP and the HRCP to
Defendants' Motion to Dismiss.
allege that Plaintiff did not properly serve the Summons and
Complaint. See ECF No. 4. Defendants assert that the
individual Defendants were not served with any notice of the
Complaint and that Plaintiff's attempt to serve Defendant
Okamoto Realty by certified mail does not constitute valid
service of process. Id. Plaintiff counters that
service by certified mail is proper and that Defendants'
motion is frivolous. See ECF No. 5 at 1, 2.
Plaintiff seeks sanctions against Defendants. See
ECF No. 5 at 2.
reasons set forth below, the Court finds that Plaintiff has
not properly served Defendants with the Summons and
Complaint. Because the deadline for service of the Complaint
has not expired, however, and Plaintiff still has time to
properly effect service, the Court recommends that the
District Court exercise its discretion to retain the case and
Plaintiff has not properly served Defendants
move to dismiss this case pursuant to FRCP 12 for
insufficient service of process. See ECF Nos. 4 at
2; 4-1 at 7. Although Defendants did not so specify, the
Court presumes that Defendants' reference to FRCP 12 is
based on FRCP 12(b)(5). See Fed. R. Civ. P. 12(b)
(“[A] party may assert the following defenses by motion
. . . (5) insufficient service of process . . .”). Both
FRCP and HRCP allow a defendant to move for dismissal of an
action if proper service of the summons and complaint have
not been made. See Fed. R. Civ. P. 12(b)(5). Where a
defendant alleges that the plaintiff has not complied with
the requirements to effect service of process, the plaintiff
has the burden of proving that service was made in accordance
with the applicable rules of civil procedure. See
Taniguchi v. Native Hawaiian Office of Atty. Gen., 2009
WL 1404731, at *2 (D. Haw. May 15, 2009).
service of a Complaint and Summons upon an individual or
corporate defendant under the FRCP is governed by FRCP 4.
Under FRCP 4(c), any person who is at least 18 years old and
not a party to the action may serve a summons and complaint.
FRCP 4(e) governs service of an individual within the United
States. The Rule requires personal service of the summons and
complaint upon the defendant; or upon a person over the age
of 18 who is at the defendant's residence; or upon the
defendant's authorized agent. Fed.R.Civ.P. 4(e). FRCP
4(h) governs the service of process upon a corporate entity
and states in relevant part that a corporation must be
served, “(A) in the manner prescribed by Rule 4(e)(1)
for serving an individual; or (B) by delivering a copy of the
summons and of the complaint to . . .” an ...