Trotter v. Tredick

• Decision Date: 17 December 2013
• Docket Number: CV 13-39-BU-DLC
• Parties: LINDA R. TROTTER, Plaintiff, v. KAREN D. TREDICK f/k/a KARIN DICKINSON, Defendant.
• Court: U.S. District Court — District of Montana

LINDA R. TROTTER, Plaintiff, v. KAREN D. TREDICK f/k/a KARIN DICKINSON, Defendant.

CV 13-39-BU-DLC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION

Dated: December 17, 2013

ORDER

Defendant Karen Tredick seeks to dismiss the complaint in this matter for insufficient service of process. Plaintiff Linda Trotter responds that Tredick is equitably estopped from dismissal, and that service was effective both on Tredick's agent and the Montana Secretary of State, prohibiting dismissal. Tredick's motion will be denied based on equitable estoppel grounds.

I. Background

Trotter and Tredick were involved in an auto accident in Beaverhead County, Montana on May 19, 2007. Trotter asserts that the accident was Tredick's fault and that she suffered injuries in the accident. Trotter filed a complaint in the Montana Fifth Judicial District Court on May 13, 2010. Trotter first attempted toserve Tredick with the complaint on March 28, 2013. Seattle Legal Process attempted to serve Tredick at her home in Seattle, Washington on March 28, March 29, April 2, and April 5. Tredick's niece was staying at her home, and informed the process server that Tredick would return home April 2, but Tredick was not there when the process server returned that day. When the process server spoke with her by telephone on April 5, Tredick said she was in Mexico and would not return until May 21.

Trotter then hired Colleen Buzzell, a private investigator and process server, who also reached Tredick by telephone. Tredick told Buzzell that her insurance agent, Holly Sanders at Liberty Mutual, should be served rather than Tredick personally. Tredick told Buzzell she would contact Sanders and call her back, but failed to do so.

Next, Trotter hired private investigator Richard Conte who went to Tredick's house on April 26, 2013. Tredick's niece told Conte that Tredick was on an extended vacation in California, and would not provide him with specific information as to where she was or her contact information. Conte spoke with Tredick on the phone, and she said her insurance agent informed her she was covered for the accident and that service would be accomplished by publication. She told Conte she was not deliberately trying to avoid service; however, shewould not tell him where she was at that time, or give him any specifics as to her whereabouts until after the service deadline. Tredick told him she was traveling to North Carolina via Las Vegas, and would be at a campground in North Carolina from May 13-20.¹ The service deadline was May 13, 2013.

Trotter's counsel, David Cotner, called Tredick on April 26, 2013, and she said she was traveling and would not return to Seattle until May 21, 2013.² Tredick said she knew service must be accomplished by either May 13 or May 19, and suggested service by publication. Tredick stated that she wanted to contact her insurance agent for guidance, and would call Cotner back. Tredick never called back, and she refused to disclose her location or sign an acknowledgment of service.

Trotter then began the steps to serve the Montana Secretary of State, and the certified mail sent from the Secretary was returned marked "unclaimed" on May 8,2013. (Doc. 3-2 at 3.) The State district court docket entry indicates that an affidavit of receipt of service of process by the Secretary of State was received on May 9, 2013, and the entry states "(defendant not served)." (Doc. 3-3.)

On May 3, Trotter attempted to have Holly Sanders with Liberty Mutual Insurance served in the Portland, Oregon office. Trotter's counsel was informed by Liberty Mutual that Sanders worked from the Idaho Falls, Idaho office, so a process server in Idaho Falls attempted service on Sanders in the office. That process server filed an affidavit stating that he personally served Holly Sanders at the Idaho Falls office on May 8, 2013. (Doc. 27-6.) However, Sanders states that she has never been to the Idaho Falls office and works from home near Boise, Idaho. (Doc. 36-4 at 9.)

Tredick removed this action to this Court on May 28, 2013, and filed a motion to dismiss for insufficient service of process on May 31, 2013.

II. Standard

"Factual questions concerning a 12(b)(5) motion, regarding the manner in which service was executed, may be determined by the Court through affidavits, depositions, or oral testimony." Travelers Cas. & Sur. Co. of America v. Telstar Const. Co., Inc., 252 F.Supp.2d 917, 923 (D.Ariz. 2003)(citing SGS-Thomson, 1993 WL 299230, *2).

The sufficiency of service is determined according to state law when service of process occurs before removal. Lee v. City of Beaumont, 12 F.3d 933, 936-37 (9^th Cir. 1993); Cardroom Intern. LLC v. Scheinberg, 2012 WL 2263330, *2 (C.D. Cal. June 18, 2012). In Montana, the rules governing service of process are generally strictly construed by courts. Semenza v. Kniss, 122 P.3d 1203, 1208 (Mont. 2005). However, in some instances, the Montana Supreme Court looks to the reasonable belief of the process server regarding proper service and the likelihood the effected service would provide notice of the lawsuit to the defendant. See Montana Professional Sports, LLC, v. National Indoor Football League, 180 P.3d 1142, 1147-48 (Mont. 2008)("NIFL").

III. Discussion

Montana Rule of Civil Procedure 4(e) states that "an individual-other than a minor or an incompetent person-must be served by either: (1) delivering a copy of the summons and complaint to the individual personally; or (2) delivering a copy of the summons and complaint to an agent authorized by appointment or law to receive service of process." Mont. R. Civ. P. 4(e) (2012). Trotter admits personal service was never perfected on Tredick. However, she argues several factors prevent dismissal of her complaint despite this deficiency:

1) Service was effective on Tredick's agent at Liberty Mutual;2) Service was effective on the Montana Secretary of State;

3) Tredick avoided service and is thus equitably estopped from dismissal of the complaint; and

4) Her service efforts were so exhaustive that sufficient service may be found pursuant to Ninth Circuit law.

These arguments will be addressed in turn.

A. Service on Holly Sanders of Liberty Mutual

Tredick claims that service on Sanders was not sufficient because she was not Tredick's agent, and, even if she was, Sanders was never personally served.

For service of Sanders to be sufficient, Trotter must have delivered "a copy of the summons and complaint to an agent authorized by appointment or law to receive service of process." Mont. R. Civ. P. 4(e)(2). Trotter contends State ex rel. Gallagher v. District Court of Sixth Judicial District (Gallagher) provides the proper standard for determining whether Sanders was Tredick's agent:

the defendants are the moving parties here, and the question is not whether the driver has been proven to be their agent, but whether he has been proven not to be their agent, which must be established by them in order to prove that the case is not within the class in which service may be made under the statute in question, and therefore to entitle them to have the service quashed. Certainly, if there is any evidence from which the trial court could properly find that the agency relation existed, it cannot on account of a conflict in the evidence be placed in error for so doing. The question thus resolves itself to this: is there an entire absence of any credible evidence indicating that thedriver at the time of the accident was an agent of the defendants?

114 P.2d 1047, 1052 (Mont. 1941).

Gallagher involved the issue of whether the drivers of a vehicle were Gallagher's agents and thus capable of accepting service of a complaint for Gallagher. The drivers of the vehicle were employees of Gallagher's, who sold vehicles out of Washington and provided his employees a defective vehicle to drive from Washington to Illinois. The employees crashed the vehicle due to exhaust leaking into the cab of the vehicle, and there was conflicting evidence regarding whether the driver of the vehicle was actually Gallagher's employee at the time of the accident. The Court held that because some evidence, albeit conflicting, existed connecting the drivers to Gallagher, they were properly served as his agent under Montana's nonresident motorist statute. Id. at 1052-53.

In Doble v. Talbott, an attorney who represented the defendant in a closely related action to the one upon which service was effected was found to be an agent capable of accepting service for his client. 589 P.2d 994, 998 (Mont. 1979). The attorney's representation in the related matter "necessarily implied a duty to protect his client's interests against t[he] type of action" involved in the complaint. Id. Despite its professed insistence on strictly construing Rule 4, the Montana Supreme Court has since said of Doble that

[s]ervice on an unauthorized agent in Doble effectively gave the defendant notice of the lawsuit and thereby afforded him the opportunity to defend himself. The attorney appeared to be authorized to accept the service, and the plaintiff reasonably believed that the attorney was a proper person to accept service. The attorney had an existing relationship with the defendant that practically ensured that the defendant would receive service. The attorney provided the defendant with the summons and complaint, thus providing the defendant notice of the lawsuit. We deemed the method of giving the defendant notice in Doble to be both fair and reasonable in light of the facts and circumstances.

NIFL, 180 P.3d at 1147 (internal citations omitted).

In NIFL, the plaintiff's process server served the complaint at NIFL's main office to a person who claimed to be the office manager. The officer manager turned out not to be an employee of NIFL, but the Court held service was proper because "the process server reasonably believed he served the proper person" and because the service "fairly and reasonably effectuated the purpose of giving NIFL...