MICHAEL H. SIMON, District Judge.
Plaintiff Frederick C. Johnston ("Johnston") brings this suit against Defendant ADT LLC ("ADT"). Before the Court is ADT's motion to dismiss pursuant to Federal Rules of Civil Procedure ("FRCP") 12(b)(2), (5), and (6). For the reasons that follow, ADT's motion is granted and this case is dismissed without prejudice.
On a motion to dismiss for lack of personal jurisdiction brought pursuant to FRCP 12(b)(2), the plaintiff bears the burden of demonstrating that the court's exercise of jurisdiction is proper. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (citing Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990)). When the court's determination is based on written materials rather than an evidentiary hearing, "the plaintiff need only make a prima facie showing of jurisdictional facts." Id. (quotation marks and citation omitted). In resolving the motion on written materials, the court must "only inquire into whether [the plaintiff's] pleadings and affidavits make a prima facie showing of personal jurisdiction." Id. (alteration in original) (quotation marks omitted) (quoting Caruth v. Int'l Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir. 1995)). A plaintiff cannot rest solely on the bare allegations of its complaint, but uncontroverted allegations in the complaint must be taken as true. Id. Conflicts between the parties over statements contained in affidavits must be resolved in the plaintiff's favor. Id. (citing Am. Tel. & Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996) and Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223 F.3d 1082, 1087 (9th Cir. 2000)). Unless a federal statute governs personal jurisdiction, a district court applies the law of the forum state. See Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008) (citing Panavision Int'l L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998)).
Under FRCP 12(b)(5), when service of process is insufficient, the court has discretion either to dismiss the action without prejudice or to quash service. S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006).
ADT is a national company that provides residential and commercial security services to its clients. Johnston worked for ADT's residential sales department from February 11, 2013 until August 29, 2014. Johnston asserts that ADT failed to provide him with reasonable accommodation for his disabilities and that ADT forced him to resign.
On August 15, 2014, Johnston filed an administrative complaint with the Bureau of Labor and Industries ("BOLI") alleging employment discrimination under Oregon Revised Statutes § ("ORS") 659A.112. On December 17, 2014, BOLI found insufficient evidence to support Johnston's allegations and issued a ninety-day notice of his right to file a civil action against ADT.
On March 10, 2015, Johnston filed suit in Clackamas County Circuit Court, bringing two claims: (1) employment discrimination under ORS 659A.112; and (2) common-law wrongful discharge. On April 21, 2015, Johnston attempted service on ADT's Beaverton office. The complaint and summons listed ADT Security Services, Inc. as the Defendant.
On June 5, 2015, Johnston filed an amended complaint in the Clackamas County Circuit Court case naming ADT LLC as the defendant. The amended complaint alleges the same facts and brings the same claims as the original complaint. Johnston sent a copy of the amended complaint to ADT's counsel via first-class mail on June 5, 2015. On July 27, 2015, ADT removed the case to this Court, asserting diversity jurisdiction. Although ADT's removal was untimely, see 28 U.S.C. § 1446(b), Johnston did not timely move for remand. See 28 U.S.C. § 1447(c).
ADT argues that this case should be dismissed in its entirety pursuant to FRCP 12(b)(2) and 12(b)(5). ADT asserts that the Court lacks personal jurisdiction over it because Johnston did not provide ADT with adequate service of process. ADT also argues that this case should be dismissed pursuant to FRCP 12(b)(6) because Johnston's ORS 659A.112 claim is barred by the applicable statute of limitations and Johnston's common law wrongful discharge claim is preempted by statute. Because the Court finds that service of process was inadequate and dismisses the action on that basis, the Court does not reach ADT's FRCP 12(b)(6) argument.
Under Oregon law, a court does not have jurisdiction over a defendant unless there is adequate service of summons. ORCP 4A; Baker v. Foy, 310 Or. 221, 224 (1990). On April 21, 2015, Johnston's process server went to ADT's Beaverton office and presented the summons and complaint to an employee. The employee informed the process server that she was not authorized to accept service and that no one in the office was so authorized. The employee refused to give the process server the name of the person in charge and tried to refuse service. The process server left the copies of the summons and complaint on a desk near the entryway door. Johnston argues that any defects in the manner by which summons was served do not invalidate service because ADT had actual notice of the lawsuit.
Johnston relies upon Lake Oswego Review, Inc. v. Steinkamp, 298 Or. 607 (1985), in arguing that ADT's actual notice of the lawsuit excuses any defects in the manner of service. In Steinkamp, the Oregon Supreme Court considered whether service of summons on an individual by certified mail, return receipt requested, was valid service under ORCP 7. Id. at 609. The defendant argued that service was not adequate because the plaintiff did not use one of the methods of service specifically described in Oregon Rule of Civil Procedure ("ORCP") 7 for service on individuals.
One year later, the Oregon Supreme Court clarified that actual notice does not excuse defects in the manner of service. In Jordan v. Wiser, 302 Or. 50 (1986), the plaintiff sued two individuals, a mother and son, in a personal injury case. Id. at 52. The plaintiff's attorney instructed the process server to serve the two defendants at the same address, as he had information that they were living together. Id. This information was incorrect. Id. at 53. The process server served the mother at her residence and attempted to make substituted service upon the son by leaving copies of the summons and complaint with the mother. Id. at 52. The mother called her son and notified him of the summons. Id. at 53. On her own initiative, she attempted to deliver the papers to her son, who refused to accept them. Id.
The Supreme Court reversed the Court of Appeals and held that no service of summons on the son had occurred. Id. at 55. The Court of Appeals had cited to Steinkamp's sentence from Professor Merrill regarding actual notice. Id. at 58 n.7. The Supreme Court clarified that "[t]he use of the above-quoted sentence in Lake Oswego Review v. Steinkamp . . . was dictum. That case was decided upon the basis of `adequate' notice and not `actual' notice." Id. The Supreme Court quoted a more recent commentary from Professor Merrill as follows:
Id. at 60 (quoting Frederic R. Merrill, Jurisdiction and Summons in Oregon 140-41, § 2.01 (1986)).
In subsequent cases, Oregon courts have held that actual notice is not sufficient to excuse defects in the manner of service. In Davis Wright Tremaine, LLP v. Menken, 181 Or.App. 332 (2002), the plaintiff—a law firm—sued the defendant for breach of contract, seeking to recover the balance of unpaid fees. Id. at 334. The plaintiff sent the complaint and summons to the defendant by both first-class mail and certified mail, return receipt requested, unrestricted delivery. Id. at 338, 340. Because the defendant did not sign the receipt for the certified mailing, service by mail did not comply with ORCP 7D(2)(d)(i). Id. at 338. The court noted that the defendant had received actual notice of the lawsuit. Id. at 339. The court continued: "As a practical matter, that fact would seem all-important. But legally, under Oregon's sufficiency of service rules and related jurisprudence, actual notice is, essentially, irrelevant." Id. at 338-39. The court reasoned that, at the time the plaintiff mailed the summons and complaint, it "had `no assurances that defendant would ever see the papers'" because the summons and complaint were sent by unrestricted delivery. Id. at 342 (quoting Murphy v. Price, 131 Or.App. 693, 697 (1994)). The court concluded that the plaintiff's attempted mail service failed to satisfy the reasonable notice standard of ORCP 7D(1). Id. at 344.
Johnston also cites to Travelers Casualty and Surety Co. of America v. Brenneke, 551 F.3d 1132 (9th Cir. 2009), in arguing that actual notice cures any defects in the manner of service. In Travelers Casualty, a process server went to the defendant's residence. Id. at 1134. The defendant responded by name, but refused to open the door to the process server. Id. The process server placed the documents on the doorstep as the defendant watched. Id. In a parenthetical, the court quoted Steinkamp's statement from Professor Merrill: "`A defendant who received actual notice can hardly assert that summons was not served by a manner calculated to give notice. . . .'" Id. at 1136. In the next sentence, however, the court stated that "`actual notice is not enough to trigger the application of ORCP 7G. . . .'" Id. at 1137 (quoting Levens v. Koser, 126 Or.App. 399, 404 (1994)). The court held that service was executed in a manner reasonably calculated to apprise the defendant of the action against him. Id.
Oregon courts have repeatedly stated that actual notice is, in itself, insufficient to excuse defects in the manner of service. Accordingly, Johnston cannot rely solely upon actual notice to argue that service of process was sufficient to comply with the ORCP.
In Baker v. Foy, the Oregon Supreme Court established a two-step method for determining whether service of summons is adequate under the ORCP. First, the court must determine whether "the method in which service of summons was made [was] one of those methods described in ORCP 7 D(2), specifically permitted for use upon the particular defendant by ORCP 7 D(3), and accomplished in accordance with ORCP 7 D(2)." Baker, 310 Or. at 228. If so, then service is presumptively adequate. Id. at 229. If service did not comply with one of these presumptively adequate methods, then the court must determine whether service of summons complied with the reasonable notice standard set forth in ORCP 7D(1). Id. ORCP 7D(1) requires that a summons be served "in any manner reasonably calculated, under all the circumstances, to apprise the defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend."
Johnston does not argue that service of summons complied with any of the presumptively adequate methods for service upon a limited liability company set forth in ORCP 7. The primary method of service upon a limited liability company is "[b]y personal service or office service upon a registered agent, manager, or (for a member-managed limited liability company) member of a limited liability company; or by personal service upon any clerk on duty in the office of a registered agent." ORCP 7D(3)(c)(i). Office service may be made by leaving copies of the summons and complaint with the person who is apparently in charge of the office. ORCP 7D(2)(c). In addition, office service is only complete after the plaintiff sends by first class mail a copy of the summons and complaint to the defendant's place of business together with a statement of the date, time, and place at which office service was made. Id. Neither party has presented evidence that the Beaverton office was the office of a registered agent, manager, or member of ADT. Additionally, Johnston did not mail a copy of the summons and complaint to ADT's place of business. Thus, any argument that Johnston complied with ORCP 7D(3)(c)(i) fails.
If a registered agent or manager cannot be found in the county where the action is filed, ORCP 7D(3)(c)(ii) allows as alternative manners of service: substituted service; personal service on any clerk or agent of the limited liability company who may be found in the county where the action is filed; service by mail in the manner specified by ORCP 7D(2)(d); or service upon the Secretary of State. Johnston's lawsuit was originally filed in Clackamas County Circuit Court. Johnston has not presented evidence that ADT does not have a registered agent or manager in Clackamas County. The Court notes that even if Johnston had presented such evidence, the process server attempted service at ADT's Beaverton office, which is in Washington County. Thus, Johnston did not complete service in accordance with ORCP 7D(3)(c)(ii). Because Johnston did not comply with any of the presumptively adequate methods of service, the Court moves to the second inquiry under Baker and considers whether service was adequate under the reasonable notice standard set forth in ORCP 7D(1).
Johnston does not argue that service of summons complied with the reasonable notice standard of ORCP 7D(1). In determining whether the totality of the circumstances indicates that the service of summons was reasonably calculated to provide the defendant with notice of the action and a reasonable opportunity to appear and defend, a court focuses on what the plaintiff and his agent, the process server, knew at the time of the purported service. Baker, 310 Or. at 225 n.6.
The facts of this case are similar to those in Stull v. Hoke, 153 Or.App. 261 (1998), where the court held that an attempt at office service did not satisfy the reasonable notice standard of ORCP 7D(1). Id. at 271. In Stull, the court considered, in part, whether the plaintiff properly served a law firm. Id. at 264. The process server left the summons and complaint with a receptionist at the law firm's office. Id. at 265. The plaintiff did not present any evidence regarding the frequency and nature of the contact the receptionist had with the law firm's partners or the extent of the receptionist's duties. Id. at 271. Additionally, the receptionist did not tell the process server that she would deliver the summons and complaint to any of the defendant's partners. Id. Because the papers were simply left with the receptionist without any inquiry and without any follow up mailing, the court held that the service on the office receptionist was not reasonably calculated to apprise the defendant law firm about the pendency of the plaintiff's action. Id.
As in Stull, here the purported service appears to be an attempt at office service under ORCP 7D(2)(c), without the requisite mailing. After an ADT employee informed Johnston's process server that no one in the office was authorized to accept service and refused to provide the name of the person in charge, Johnston's process server placed the summons and complaint on a desk near the entryway door and left. The ADT employee did not tell the process server that she would deliver the summons and complaint to anyone in authority. Additionally, Johnston did not make any subsequent attempt to ensure that ADT received the summons and complaint, such as providing ADT with a follow-up mailing. Thus, the Court finds that Johnston's attempt at office service was not reasonably calculated to notify ADT of the lawsuit and did not comply with ORCP 7D(1). The Court concludes that Johnston failed to effect proper service on ADT and dismisses the action without prejudice.
ADT's motion to dismiss (Dkt. 7) is GRANTED and this case is DISMISSED without prejudice.
Although ORCP 7G does not excuse defects in the manner of service, it may excuse Johnston's incorrect naming of ADT as "ADT Security Services, Inc." in the summons. In Oregon, "`[p]rocess served on a man by a wrong name is as really served on him as if it had been served upon him by his right name. In such case it seems to us that the court acquires jurisdiction over his person. . . .'" St. Arnold v. Star Expansion Indust., 268 Or. 640, 642 (1974); see also Fredric R. Merrill, Jurisdiction and Summons in Oregon § 2.05 ("Under ORCP 7 G, even if a summons misnames a defendant completely, service should be valid if the person served can reasonably tell that he or she is actually the person against whom the action is directed. This is consistent with the relation back doctrine which applies when an amended complaint changes the party against whom the claim is asserted.").
