Civil Action No. 03-D-2334(PAC)

Plaintiffs,

v.

E! ENTERTAINMENT TELEVISION, INC., a Delaware corporation,

Defendant

      Undersigned counsel certifies that, to avoid expending the judicial resources necessitated by this Motion, undersigned counsel telephoned Plaintiff Michael Meadors on February 12, 2004, and requested that Plaintiffs consent to acceptance of service under the terms of Fed.R.Civ.P.4(d). Undersigned counsel further certifies that Plaintiffs denied this request.

       Pursuant to Fed.R.Civ.P.12(b)(5), Defendant E! Entertainment Television moves this Court for an order dismissing this action for insufficiency of service of process. In this alternative, Defendant moves this Court of an order quashing Plaintiffs' attempts at service upon Defendant in this action. In support of this Motion, Defendant states that, as detailed below, Plaintiffs have failed both to effectuate proper service of process in this lawsuit, and to cooperate with Defendant in arriving at a permissible waiver of service. "The party asserting the validity of service bears the burden of proof on that issue." Staudinger v. Hoelscher, Inc., 166 F.Supp.2d 1335, 1339 (D.Kan.2001). Plaintiffs cannot meet this burden.

      Because Defendant is a corporation, Fed.R.Civ.P.4(h) mandates that Plaintiffs serve their summons and complaint upon Defendant "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process" or "pursuant to the law of the state in which the district court is located, or in which service is effected." Plaintiffs ignored these requirements and simply discarded a summons and complaint at Defendant's Los Angeles reception desk.

      Leaving a summons and complaint at a reception desk does not qualify as delivery upon an officer or managing, general, or statutory agent as mandated by Fed.R.Civ.P.4(h). "[A]bsent actual authority to act as an agent for the service of process, an agent is not authorized to accept service on behalf of her principal." Select Creations, Inc. v. Paliafito America, Inc.,

830 F.Supp.1223, 1234 (E.D. Wis.1993).

The mere fact that a person acts as the defendant's agent for some purposes does not necessarily mean the person is authorized to receive service of process on the defendant's behalf... The bare fact that an alleged agent actually accepts process for the defendant is not enough to constitute valid service of process. There must be evidence that the defendant intended to confer upon its agent the specific authority to receive and accept service of process for the defendant.

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¹ Also, "[a]ctual notice does not constitute servic of process on [defendants] pursuant to Fed.R.Civ.P.4(h)." Arthur v. Litton Loan Servicing LP, 249 F.Supp.2d 924, 928 (E.D. Tenn. 2002).

Kovalesky v. A.M.C. Associated Merchandising Corp., 551 F.Supp. 544, 546 (D.C.N.Y. 1982)(setting aside service and awarding sanctions where plaintiff served receptionist who was not authorized to accept service).

      Nor does this slipshod tactic comply with California's laws governing service of process. California law required Plaintiffs to serve their complaint and summons upon either (i) Defendant's statutorily-designated agent for service of process, or (ii) Defendant's 'president... vice president,... secretary or assistant secretary,... treasurer or assistant treasurer, a general manager, or a person authorized by [Defendant] to receive service of process." CCal.Civ.Proc.Code § 416.10. ² None of Defendant's officers or appointed agents specified in § 416.10 were at the reception desk at which Plaintiffs left their summons and complaint. Plaintiffs chose an impermissible means of service under California law, meaning service was also improper under Fed.$.Civ.P.4(h).

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² California law prohibited service on persons other than those designated in § 416.10, unless such service was served at Defendant's office "during usual office hours" and (i) upon "the person who is apparantly in charge" of Defendant's office; and (ii) Plaintiff subsequently mailed a copy of the summons and complaint to one of the persons designated in § 416.10. Cal.Civ.Proc.Code § 415.20(a). However, Plaintiffs' process server left the summons and complaint with the first individual seen at the reception desk, not the person who was apparantly in charge of Defendant's office. Also, Plaintiffs failed to mail the summons and complaint to any of the persons designated in § 416.10.

      B.   Plaintiffs Rebuked Defendant's Efforts To Effectuate A Proper And Efficient Waiver Of Service Of Process

      Defendant did not want to bring this Motion, but Plaintiffs left Defendant with no alternative. After the complaint and summons that Plaintiffs left at Defendant's reception desk finally worked its way to Defendant's counsel, almost all of Defendant's 20-day time period to answer Plaintiff's complaint had lapsed. To deal with this problem, undersigned counsel contacted Plaintiff Michael Meadors and notified Plaintiffs that, nothwithstanding Plaintiffs' improper service under Fed.R.Civ.P.4(h), Defendant was willing to waive service pursuant to Fed.R.Civ.P.4(d). Undersigned counsel explained to Plaintiff Meadors that a waiver under Rule 4(d) would avoid the time and expense of a motion challenging the propriety of Plaintiffs' service. A copy of a letter sent by undersigned counsel to Plaintiff Meadors memorializing this coversation is attached as Exhibit A. Plaintiff Meadors responded with an email refusing to cooperate in service by waiver under Rule 4(d). A copy of this email is attached as Exhibit B. Undersigned counsel again emailed Defendant Meadors on February 17, 2004, requesting an extension of time to respond to Plaintiffs' Complaint. A copy of this emnail is attached as Exhibit C. Plaintiffs never responded to this request. Unable to avail itself of service by waiver, and the additional response time provided by Rule 4(d) that Defendant now needs, Defendant had no choice but to file this Motion or face default.³

      C.  Plaintiffs' Lawsuit Should Be Dismissed, Or Their Attempt At Service Should Be Quashed, Unless And Until Plaintiffs Comply With Rule 4

      Under Fed.R.Civ.P.12(b)(5), this Court has discretion to either dismiss this lawsuit or quash Plaintiffss attempt at service based on the impropriety of this attempt under Fed.R.Civ.P. 4(h). 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2D, § 1354 pp.286- 87. Based on Plaintiffs' patent disregard of Rule 4(h), and their obstreperous conduct that necessitated this Motion, this Court should exercise its discretion by entering an order that either dismisses Plaintiffs' Complaint or, in the alternative, quashes Plaintiffs' attempt at service upon Defendant.

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³ It is Defendant's position that Plaintiffs' claims are lacking in legal merit and Defendant will present this position with authority at the appropriate time. However, Plaintiffs' refusal to cooperate with a waiver of service precluded Defendant from responding to Plaintiffs' claims within the 20-day time period imposed by Fed.R.Civ.P.12.

      I hereby certify that, on this 18th day of February, 2004, a true and correct copy of the foregoing MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO QUASH SERVICE FOR INSUFFICIENCY OF SERVICE OF PROCESS was served on the following via U.S.Mail, postage pre-paid, to the following:

Karen Dudnikov
Michael Meadors
P.O. Box 87
3463 Maskoke Trail
Hartsel, CO 80449