Lensel Lopez v. Cordero, Civ. No. 86-1244 HL.
| Decision Date | 08 May 1987 |
| Docket Number | Civ. No. 86-1244 HL. |
| Citation | 659 F. Supp. 889 |
| Court | U.S. District Court — District of Puerto Rico |
| Parties | Ana LENSEL LOPEZ, et al., Plaintiffs, v. Rafael CORDERO, et al., Defendants. |
Frank Rodriguez Garcia, Ponce, P.R., for plaintiffs.
Edda Serrano-Blasini, P.R. Dept. of Justice, San Juan, P.R., for defendants.
This is a sect. 1983 action against three officials in the Right to Work Administration of Puerto Rico, two of the officials' wives, and the conjugal partnerships they constitute. Codefendant Rafael Cordero, his wife, the wife of codefendant Eliezar García, and the two conjugal partnerships move the Court for dismissal for insufficiency of process. In the alternative, the wives and conjugal partnerships base their motion to dismiss on failure to state a claim. These motions are unopposed.
Codefendant Rafael Cordero challenges the sufficiency of process. The summons was served upon him through a secretary at the Administration, Mayra Juarbe, identified as his secretary on the return of service. Cordero maintains that he never authorized Ms. Juarbe to receive service of process for him. For support, he includes a copy of a memo disseminated within the Administration over a year before the service in this case which authorized the director of the Administration's legal division, Luis Viera, as the person to receive service of process for him. In the absence of Mr. Viera, a Mrs. María del Carmen Díaz is authorized. Nowhere does Mayra Juarbe's name appear.
F.R.C.P. 4(d)(1) allows service of process on an individual through "an agent authorized by appointment or by law to receive service of process." Mayra Juarbe was not authorized by appointment. Others were. Service through a secretary, even a personal secretary, which may not even be the case here, is invalid if not authorized. Betlyan v. Shy, 573 F.Supp. 1402, 1406 (D.Del. 1983).
The plaintiff has the burden of establishing the validity of the service of process. Klishewich v. Mediterranean Agencies, Inc., 42 F.R.D. 624 (E.D.N.Y. 1966); 2 Moore's Federal Practice, Sect. 4.12. By not opposing defendant's motion and supporting documents, plaintiff has failed to meet that burden. The service of process is insufficient. The Court, however, declines to dismiss the case under F.R.C.P. 12(b)(5) because of it. Since it appears that there exist future possibilities of serving codefendant Rafael Cordero, the better disposition is to quash the service.
The wife of codefendant Eliezar García was served with the summons and complaint "by leaving copies thereof at her dwelling house or usual place of above with some person of suitable age and discretion then residing therein" (her husband). F.R. C.P. 4(d)(1). Service was sufficient.
The wife of codefendant Rafael Cordero, on the other hand, was not served in this manner or any other deemed sufficient under the Rules. Service was made through Mayre Juarbe, who was not authorized to receive service for either Mr. or Mrs. Cordero. Service of process on codefendant Mrs. Cordero was insufficient.
Service of process on the conjugal partnership composed of Mr. and Mrs. Cordero was thus insufficient. A conjugal partnership is a distinct legal entity under the laws of Puerto Rico. Jurisdiction can be acquired over the conjugal partnership through service of process on either one of the members of the partnership. The best practice, however, is to serve both members. Pauneto v. Nunez, 115 D.P.R. 591, 594 (1984). Because neither Mr. or Mrs. Cordero has been sufficiently served, the conjugal partnership has not been served.
On the other hand, the conjugal partnership composed of Mr. and Mrs. García has been properly served, as both members have been properly served.
Codefendant wives and conjugal partnerships move under F.R.C.P. 12(b)(6) for dismissal of the claims against them. They argue that because they were not involved in the actions which gave rise to plaintiffs' suit, they cannot be included in the suit for damages. The law of Puerto Rico, however, is contrary.
Article 1310 of the Civil Code of Puerto Rico, 31 L.P.R.A. 3663 provides that fines or...
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...The spouse of a state actor may not be held individually liable for the section 1983 claims of the state actor. Lensel Lopez v. Cordero, 659 F.Supp. 889, 891 (D.P.R. 1987). Although the inclusion of the couple's conjugal partnership as a defendant is appropriate, Mocoroa is not a proper def......
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