United States District Court, W.D. Arkansas, Fayetteville Division
DR. GEORGE GRAEN PLAINTIFF
FCA US, LLC; CHRYSLER GROUP, LLC; and DAIMLERCHRYSLER AG DEFENDANTS
OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE
before the Court are Defendants FCA US, LLC's; Chrysler
Group, LLC's; and DaimlerChrysler AG's (collectively,
"Chrysler") Motion to Dismiss (Doc. 7) and Brief in
Support (Doc. 8); Plaintiff George Graen's Response (Doc.
10) and Brief in Support (Doc. 11); and Chrysler's Reply
(Doc. 17). Chrysler's Motion argues that Graen's
attempt at service was improper, and so his Complaint (Doc.
1) should be dismissed. Yesterday, the Court took argument on
the Motion at the Case Management Hearing, and issued a
ruling from the bench agreeing that Graen failed to effect
service, but disagreeing that dismissal was the appropriate
remedy. Instead, the Court ordered Graen to properly serve
Chrysler within twenty (20) days. On that reasoning,
Chrysler's Motion to Dismiss (Doc. 7) is DENIED. To the
extent that any statement in this Order conflicts with the
Court's pronouncement from the bench, this Order
to the Complaint, Graen was driving his Dodge Viper on
December 2, 2012, when a defect in the vehicle's right
rear tire apparatus caused him to crash. He filed this
diversity action exactly three years later, on December 2,
2015, alleging product liability, negligence, and breach of
warranty against Chrysler. Chrysler filed the instant Motion
to Dismiss on April 20, 2016.
argues that Graen's attempt at service was insufficient
for two reasons. First, it asserts that service was untimely.
Graen waited until March 30, 2016, 119 days after filing his
Complaint, to serve Chrysler. See Doc. 6. On
December 1, 2015-the day before Graen initiated this
suit-several substantive changes to the Federal Rules of
Civil Procedure went into effect. One such change was a
reduction in the time allotted to serve a defendant, from 120
days to 90 days. See Fed. R. Civ. P. 4(m). In
addition to this timeliness issue, Chrysler argues that
Graen's attempt at service was improper because Graen
served its authorized Texas agent, rather than its Arkansas
agent. See Doc. 10-3, pp. 1-6.
the aforementioned change to the Federal Rules of Civil
Procedure, Graen maintains that he timely effected service.
First, he contends that Rule 4(h)(1)(A)-which adopts state
requirements for service-affords him 120 days because that is
the time limit imposed by Arkansas' Rules of Civil
Procedure. See Fed. R. Civ. P. 4(h)(1)(A), 4(e)(1);
Ark. R. Civ. P. 4(i). Second, Graen believes his delay was
justified based on representations Chrysler's counsel
made about waiving service. Third, he notes that the
Clerk's Office (errantly) referenced a 120-day time frame
when it filed its First Notice of No Service of Process on
January 11, 2016.
Court disagrees with all three arguments. First, Rules
4(h)(1)(A) and 4(e)(1), read in conjunction, permit
plaintiffs to serve corporate defendants by "following
state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the
district court is located or where service is made."
to Graen's contention, this rule does not allow
plaintiffs to avail themselves of the pertinent states'
time limits for service. Such an interpretation would render
the Federal Rules' 90-day limit completely ineffectual.
Rather, Rule 4(e)(1) allows plaintiffs to utilize the
methods of service authorized by state law. Second,
Graen's counsel's email correspondence with
Chrysler's counsel pertaining to waiver of service does
not excuse Graen's failure to timely serve Chrysler.
Graen did not even send Chrysler a request for waiver of
service until February 25, 2016, (Doc. 5), a full 85 days
after filing his Complaint and only five days before Rule
4(m)'s 90-day time limit. Third, the Clerk's errant
Notice re No Service of Process referencing the outdated
120-day time frame may provide good cause for
excusing Graen's failure to timely attempt service, but
it does not make his attempt at service timely.
to Chrysler's second argument, the Court finds that
Graen's attempt to serve Chrysler by serving its Texas
agent was improper. At first glance, Rule 4(h)(1) would seem
to permit Graen's course of action. That rule allows a
plaintiff to serve a corporate defendant "in a
judicial district of the United States . . . (B) by
delivering a copy of the summons and of the complaint to an
officer, a managing agent, or any other agent authorized by
appointment or by law to receive service of process . . .
." (emphasis added). Graen relies heavily on the opening
clause's use of the phrase "a judicial district,
" which it takes to mean "any judicial
district." In other words, Graen contends that it did
deliver a copy of the summons and complaint to Chrysler's
agent in a judicial district of the United
States-namely, the Northern District of Texas. A closer look
at the Rule, however, reveals why Graen's attempt at
service misses the mark.
4(h)(1)(B) permits service by delivery to an "agent
authorized by appointment ... to receive service of
process." Whether an agent is authorized to
receive service of process on behalf of a corporation, then,
depends upon the scope of the agency relationship. As Wright
& Miller explains:
[T]he provision in Rule 4(h)(1) for serving agents authorized
by appointment contemplates service on agents either
expressly or impliedly appointed by the defendant
organization as agents to receive process. Thus, service
under this portion of Rule 4(h)(1)(B) requires an inquiry
into the scope of the agency by appointment relationship ....
4A Wright & Miller, Fed. Prac. & Proc. Civ. § 1101 (4th
approach is similar to the one taken by the Eighth Circuit in
Printed Media Services, Inc. v. Solna Web Inc., 11
F.3d 838 (8th Cir. 1993). The plaintiff brought suit against
two related companies, one a Missouri corporation and the
other a Delaware corporation. Id. at 839. Rather
than serving both corporations separately, however, the
plaintiff served only the Missouri corporation's
registered agent in Missouri. Id. at 841. After the
plaintiff obtained a default judgment against the Delaware
corporation, that corporation filed a Rule 60(b) motion to
vacate based on improper service. The district court denied
the motion, and the Delaware corporation appealed.
appeal, the plaintiff argued that the Missouri
corporation's registered agent in Missouri was the
implied agent of the related Delaware corporation. The Eighth
Circuit disagreed. It found that "no agency
relationship" could be implied by the facts of the case,
and there was no indication that the Missouri
corporation's agent "had actual authority to receive
service" on the Delaware corporation's behalf, or