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Kriege v. Morimoto

United States District Court, D. Hawaii

July 3, 2017

PHILLIP B. KRIEGE, Plaintiff,
v.
GREGG MORIMOTO; MICHAEL A. NUSS; BRENDA ORTEZ PARKS; and HARLEY PARKS, Defendants.

          ORDER DENYING DEFENDANTS' MOTION TO DISMISS

          Derrick K. Watson United States District Judge.

         INTRODUCTION

         Plaintiff Phillip B. Kriege, proceeding pro se, filed a Complaint on June 17, 2016 against the State of Hawaii Consumer Protection Division (“State”), Gregg Morimoto, Michael A. Nuss, Mark S. Kawata, Iron Horse Towing (“Iron Horse”), Brenda Ortez Parks (“Brenda Parks”), and Harley Parks (“Harley Parks”) alleging violations of his federal civil rights. As best the Court can discern, Kriege asserts that Iron Horse, Brenda Parks, and Harley Parks wrongfully impounded and/or seized his dump truck and that the State, Kawata, Morimoto, and Nuss failed to investigate and/or concealed the wrongful conduct.

         Morimoto and Nuss, employees of the State, seek dismissal of the Complaint for lack of service, following several extensions of time, and attempts by the Court to provide guidance to Kriege regarding his service obligations.[1] At the June 30, 2017 hearing on the Motion to Dismiss, Morimoto acknowledged having received personal service of the summons and Complaint-albeit untimely. Nuss, however, has yet to be served. In light of Morimoto's acknowledgment of service, and Kriege's January 13, 2017 proofs of service filed with the Court and other efforts to serve Nuss, the Court denies the Motion and grants Kriege a short extension of time in which to serve Nuss in accordance with Federal Rule of Civil Procedure 4. The Court cautions Kriege that failure to properly serve Nuss and file a proof of service with the Court by July 13, 2017 will result, without further notice, in the dismissal of Nuss without prejudice.

         BACKGROUND

         I. Procedural Background

         Kriege filed his Complaint on June 17, 2016. Dkt. No. 1. On July 13, 2016, he filed a certificate of service representing that each of the defendants had been “personally served” with a copy of the Complaint, but which, nonetheless, did not comply with the service requirements of Rule 4. Dkt. No. 9. The State, Morimoto, and Nuss filed a Scheduling Conference Statement on September 14, 2016, in which they identified the service defects and therefore disputed jurisdiction. Dkt. No. 14.

         On September 15, 2016, the Magistrate Judge held a status conference to address the sufficiency of service in lieu of holding the Rule 16 Scheduling Conference. Dkt. No. 15 (9/15/16 Court Minutes). At the status conference, the Magistrate Judge extended the deadline to serve the Complaint until November 15, 2016. Id. On September 29, 2016, Kriege filed a document entitled “Summons and Request to Shorten Time, ” which sought to advance the Rule 16 Scheduling Conference to October 15, 2016, but did not evidence a renewed attempt at proper service. Dkt. No. 18. The Magistrate Judge denied that request in light of the previous continuance of the Rule 16 Scheduling Conference to allow time for all parties to be served and to appear. Dkt. No. 23 (10/12/16 Court Minutes).

         On December 12, 2016, the Magistrate Judge held a further status conference regarding the sufficiency of service in lieu of a Rule 16 Scheduling Conference, Dkt. No. 29 (12/12/16 Court Minutes), during which Kriege maintained that he had properly served the Complaint and directed the Court to the certificates of service he had previously filed. See, e.g., Dkt. Nos. 8, 9, 19 (Certificates of Service). Kriege also contended that it was the Court's duty to prepare and serve summonses upon each defendant. See Dkt. No. 30 (12/16/16 OSC).

         On December 16, 2016, the Magistrate Judge issued the first Order to Show Cause, requiring Kriege to address in writing by January 15, 2017 why this action should not be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m). Dkt. No. 30. The Magistrate Judge advised Kriege that the certificates of service he filed did not indicate what documents Kriege had served or exactly whom he had served, and therefore, were insufficient to establish proper service. Id.

         On January 13, 2017, Kriege filed with the Court four proofs of service with respect to Morimoto (Dkt. No. 37), Nuss (Dkt. No. 39), Brenda Parks (Dkt. No. 38), and Harley Parks (Dkt. No. 40). Those proofs of service appear to reflect personal service of the court-issued summons upon Morimoto on January 11, 2017, and attempted service on Nuss by serving the summons upon Morimoto as a person “designated by law to accept service of process” on Nuss's behalf. See Dkt. Nos. 37 and 39. On February 21, 2017, the State, Morimoto, and Nuss filed the instant Motion, which does not address the January 13, 2017 proofs of service. Dkt. No. 41.

         II. Further Order To Show Cause And Dismissal Of Unserved Defendants

         On April 7, 2017, the Magistrate Judge issued a Further Order to Show Cause Regarding Service (“OSC”) because Kriege made no attempt to establish service upon the State, Kawata, or Iron Horse. See Dkt. No. 49. The OSC directed Kriege to address in writing by May 5, 2017 why this action should not be dismissed without prejudice pursuant to Rule 4(m) as to these unserved defendants.

         On April 17, 2017, Kriege filed a document entitled Objections to Proposed Testimony Motion in Limine F.R.C.P. 16.9 (“Objections”). Dkt No. 52. Attached to the Objections are the proofs of service for Morimoto, Nuss, Harley Parks, and Brenda Parks from January 2017. Kriege also argued therein that defendants “have been served by Personal Service on 3 Three separate occasions.” Dkt. No. 52 at 3.

         On May 2, 2017, Kriege filed his Response to the OSC, which also appears to respond to the instant Motion. Dkt. No. 56. In his Response to the OSC, he maintains that at the September 16, 2016 status conference, the Magistrate Judge ordered defendants to comply with all service requirements. Dkt. No. 56-1 at 2, 4. According to Kriege, he fulfilled his service obligations with respect to Morimoto and Nuss after they declined to waive service by mail, id. at 3, and that the Declarations of Morimoto and Nuss in support of the instant Motion are false. Id. at 4.

         On June 2, 2017, the Magistrate Judge issued a Findings and Recommendation (“F&R”) to dismiss without prejudice the State, Kawata, and Iron Horse for lack of service. Dkt. No. 57. The Magistrate Judge found that neither the Objections nor the Response to the OSC established proper service upon the unserved defendants, despite Kriege's alternative assertions that he served all defendants and/or is not obligated to serve defendants. F&R at 3-4. In light of the record before him, the Magistrate Judge recommended dismissing the unserved defendants based on Kriege's failure to prosecute and failure to comply with the court's ...


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