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Steve David of Aver v. Wal-Mart Stores

June 27, 2011

STEVE DAVID OF AVER, PLAINTIFF,
v.
WAL-MART STORES, INC., DEFENDANT.



The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge

ORDER ON REPORT AND RECOMMENDATION

On May 16, 2011, United States Magistrate Judge Larry M. Boyle issued a Report and Recommendation ("Report"), recommending that Defendants' Motion for Default be denied and ordering the Plaintiff to properly serve the Defendant by June 3, 2011. (Dkt. No. 7.) Any party may challenge a magistrate judge's proposed recommendation by filing written objections within ten days after being served with a copy of the Report and Recommendation. 28 U.S.C. § 636(b)(1)(C). The district court must then "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. The district court may accept, reject, or modify in whole or in part, the findings and recommendations made by the magistrate judge. Id.; see also Fed. R. Civ. P. 72(b)(3). Plaintiff filed objections challenging the jurisdiction of the Magistrate Judge to issue the Report. (Dkt. No. 10.) The Court finds as follows.

Discussion

Plaintiff, Steven David of aver, initiated this action by filing his Complaint against Defendant Wal-Mart Stores, Inc. on July 28, 2010. (Dkt. No. 1.) Thereafter, on January 26, 2011, Plaintiff filed an Amended Complaint. (Dkt. No. 2.) On March 22, 2011, Plaintiff filed a Return of Summons wherein he purports service was made by one David Bruce Allen upon Samuel G. Whipple, shift manager, at the Wal-Mart Store in Ponderay, Idaho. (Dkt. No. 4.) On May 5, 2011, Plaintiff filed his Motion for Entry of Default alleging Defendant had failed to appear in this action after having been properly served. (Dkt. No. 5.)

The case was initially assigned to Magistrate Judge Boyle in the Court's random draw. Magistrate Judge Boyle considered Plaintiff's Motion for Entry of Default and issued an Order denying the same on the ground that Defendant had not been served. (Dkt. No. 7.) However, because the parties had not consented to a Magistrate Judge, the Order was converted into a Report and Recommendation and the case was reassigned to this Court for review of the same. (Dkt. No. 9.)

In his Report, Magistrate Judge Boyle concluded that Plaintiff's attempted service upon the shift manager at Wal-Mart was insufficient to properly effect service upon Wal-Mart Stores, Inc. (Dkt. No. 7.) The sum and substance of Plaintiff's objection is a challenge to Magistrate Judge Boyle's jurisdiction under 28 U.S.C. § 636 to rule upon the Motion for Entry of Default in this case. (Dkt. No. 10.) Plaintiff's objection, however, is moot at this stage given the reassignment of this case to this Court. (Dkt. No. 9.) Having reviewed the record herein de novo and Plaintiff's submissions, this Court agrees with the Magistrate Judge's conclusion that Plaintiff has not properly served the Defendant in this action but differs in its analysis.

In order for Plaintiff to properly serve Wal-Mart Stores, Inc., he will need to do so in accordance with Federal Rule of Civil Procedure 4 as it applies to a corporation. See Butcher's Union Local 498, United Food and Commercial Workers v. SDC Investment, Inc., 788 F.2d 535, 538 (9th Cir. 1986) (explaining that plaintiff bears the burden of establishing that proper service was effected). The Report cites to Federal Civil Rule of Procedure 4(d)(3). (Dkt. No. 7.) However, service upon a corporation is governed by Rule 4(h), which states in relevant part:

Unless federal law provides otherwise or the defendant's waiver has been filed, a domestic or foreign corporation ... that is subject to suit under a common name, must be served:

(1) in a judicial district of the United States:

(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 officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant....

Thus, service under Rule 4(h) can be accomplished by either 1) the manner prescribed by Rule 4(e)(1) or 2) by delivering a copy of the summons and complaint to an officer, managing or general agent, or any other agent authorized by appointment or law. The Court will analyze both options below.

Under the first option, service can be effectuated on a corporation "in the manner prescribed for individuals by subdivisions (e)(1)." Fed. R. Civ. P. 4(h)(1)(A). Rule 4(e) states that "service upon an individual from whom a waiver has not been obtained and filed ... may be effected ... (1) pursuant to the law of the state in which the district court is located, or in which service is effected." Fed. R. Civ. P. 4(e). In Idaho, the law for serving a corporation is found in Idaho Rule of Civil Procedure ("IRCP") 4(d)(4)(A) and (B) which states:

(A) Upon a domestic or foreign corporation by delivering a copy of the summons and complaint to an officer, managing or general agent, or to any other agent authorized by appointment or by ...


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