United States District Court, D. Hawaii
PHILLIP B. KRIEGE, Plaintiff,
GREGG MORIMOTO; MICHAEL A. NUSS; BRENDA ORTEZ PARKS; and HARLEY PARKS, Defendants.
ORDER DENYING DEFENDANTS' MOTION TO
Derrick K. Watson United States District Judge.
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.
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. 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.
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.
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).
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).
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.
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.
Further Order To Show Cause And Dismissal Of Unserved
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.
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.
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.
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 ...