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Sommers v. Okamoto

United States District Court, D. Hawaii

January 4, 2017

MARIA D. SOMMERS, Plaintiff,
v.
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.

         On 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.

         On 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.

         The 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 Default Judgment.

         BACKGROUND

         On 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.

         DISCUSSION

         I. Motion to Dismiss for Insufficient Service of Process

         Defendants 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.

         Defendants 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.

         For the 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 quash service.

         A. Plaintiff has not properly served Defendants

         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).[1] 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).

         The 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 ...


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