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WELLS v. AMERICAN POLYGRAPH ASSOCIATION, CV-13-00607-PHX-GMS. (2013)

Court: District Court, D. Arizona Number: infdco20130822763 Visitors: 3
Filed: Aug. 21, 2013
Latest Update: Aug. 21, 2013
Summary: ORDER G. MURRAY SNOW, District Judge. Pending before the Court are several motions: Defendants' Motion to Dismiss (Doc. 28), Plaintiffs' Motion to Strike Defendants' Motion to Dismiss (Doc. 29), Plaintiffs' Motion to Amend (Doc. 56), Defendants' Motion to Strike Service Executed (Doc. 59), and Defendants' Motion to Strike Plaintiffs' Response to Defendants' Reply (Doc. 71). For the reasons discussed below, Defendants' Motion to Dismiss is denied as moot, Plaintiffs' Motion to Strike is denied
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ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court are several motions: Defendants' Motion to Dismiss (Doc. 28), Plaintiffs' Motion to Strike Defendants' Motion to Dismiss (Doc. 29), Plaintiffs' Motion to Amend (Doc. 56), Defendants' Motion to Strike Service Executed (Doc. 59), and Defendants' Motion to Strike Plaintiffs' Response to Defendants' Reply (Doc. 71). For the reasons discussed below, Defendants' Motion to Dismiss is denied as moot, Plaintiffs' Motion to Strike is denied as moot, Plaintiffs' Motion to Amend is denied as premature, and Defendants' Motion to Strike is granted.

Defendants have moved to strike Plaintiffs' Affidavit/Proof of Service filed on June 21, 2013. (Doc. 59.) Plaintiffs' Proof of Service indicates that Plaintiffs served the summons on attorney Whitney M. Harvey, whom Defendants had not authorized to accept service on their behalf as of June 21, 2013. (See Doc. 55.) Service of a complaint on an attorney is ineffective unless the attorney has specific authority to accept service. Pochiro v. Prudential Ins. Co. of Am., 827 F.2d 1246, 1248-49 (9th Cir. 1987). Plaintiffs object that Harvey had submitted a notice of appearance as attorney of record for all Defendants on June 4, 2013. (See Doc. 43.) That appearance did not, however, contain any express grant of authority to accept service on behalf of Defendants. The attorney-client relationship by itself is insufficient to convey authority to accept service. Kruska v. Perverted Justice Found. Inc., No. CV-08-0054-PHX-SMM, 2009 WL 4041941 at *2 (D. Ariz. Nov. 16, 2009). Though implied authority to accept service of process is permissible in the Ninth Circuit, an agent's authority to act cannot be established solely though the agent's actions; rather, the authority must be established by an act of the principal. In re Focus Media Inc., 387 F.3d 1077, 1082, 1084 (9th Cir. 2004). Here, there is no evidence of any act by Defendants indicating that Harvey had authority to accept service of process. The fact that Harvey requested copies of notices and pleadings to be sent to her does not implicate Defendants, who have not by their actions or otherwise given Harvey permission to accept service on their behalf. Thus, Plaintiffs' service of process by mailing the Complaint to Harvey was insufficient, and Defendants' Motion to Strike is granted.

Because Plaintiffs have not yet effectuated service on Defendants, their Motion to Amend is premature, as is Defendants' Motion to Dismiss the as-yet unserved Complaint. Because the Motion to Dismiss is premature, Plaintiffs' Motion to Strike the Motion to Dismiss and Defendants' Motion to Strike Plaintiffs' Response to their Reply are denied as moot.

IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss (Doc. 28) is DENIED AS PREMATURE.

IT IS FURTHER ORDERED that Plaintiffs' Motion to Strike Defendants' Motion to Dismiss (Doc. 29) is DENIED AS MOOT.

IT IS FURTHER ORDERED that Plaintiffs' Motion to Amend (Doc. 56) is DENIED AS PREMATURE.

IT IS FURTHER ORDERED that Defendants' Motion to Strike Service Executed (Doc. 59) is GRANTED.

IT IS FURTHER ORDERED that Defendants' Motion to Strike Response (Doc. 71) is DENIED AS MOOT.

IT IS FURTHER ORDERED that Plaintiffs shall properly serve the Defendants within 30 days of the date of this Order with the Summons and Amended Complaint1 and file proof of service.

FootNotes


1. The Amended Complaint filed on May 1, 2013 (Doc. 24) is the "operative complaint" in this matter.
Source:  Leagle

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