United States District Court, W.D. Oklahoma
MILES-LaGRANGE UNITED STATES DISTRICT JUDGE
the Court are the Special Appearance of Defendant James Roger
Seymour and Motion to Quash Purported Service of Summons and
Amended Special Appearance of Defendant James Roger Seymour
and Motion to Quash Purported Service of Summons, both filed
May 1, 2017. On May 1, 2017, plaintiff filed her responses,
and on May 8, 2017, defendant James Roger Seymour
(“Seymour”) filed his reply. Based upon the
parties' submissions, the Court makes its determination.
March 31, 2017, plaintiff filed the instant action against
defendants and summons were issued. The Summons to Seymour
was issued to “JAMES ROGER SEYMOUR d/b/a RECEIVABLE
MANAGEMENT GROUP c/o CORPORATION SERVICE COMPANY D/B/A
CSC-LAWYERS INCO (Registered Agent)”. Summons in Civil
Action [docket no. 2] at 1. On April 5, 2017, plaintiff filed
an Affirmation of Service indicating that true and correct
copies of the summons and complaint in this action were duly
served upon Seymour, and a copy of a United States Postal
Service Certified Mail Return Receipt signed by Chris Saizan
was attached to the affirmation. See Affirmation of
Service [docket no. 4]. Seymour now moves this Court to quash
the purported service of the summons and complaint on him.
Specifically, Seymour asserts that the purported proof of
service is improper and does not meet the standards for
service required by the Federal Rules of Civil Procedure.
contends that Seymour has waived any objection to service by
entering an appearance in this case and/or moving for an
extension of time to file a responsive
pleading.Federal Rule of Civil Procedure 12 provides
that objections to service of process “must be raised
in a party's first responsive pleading or by motion
before the responsive pleading.” United States v.
51 Pieces of Real Prop., Roswell, N.M., 17 F.3d 1306,
1314 (10th Cir. 1994). Further, the Tenth Circuit has held
that an initial appearance and a motion for extension of time
are not responsive pleadings that waive the defense of
insufficient service of process. See Id.
Accordingly, the Court finds that Seymour has not waived his
insufficient service of process objection.
Rule of Civil Procedure 4(e) provides:
Unless federal law provides otherwise, an individual - other
than a minor, an incompetent person, or a person whose waiver
has been filed - may be served in a judicial district of the
United States by:
(1) 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; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to
the individual personally;
(B) leaving a copy of each at the individual's dwelling
or usual place of abode with someone of suitable age and
discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Civ. P. 4(e). Further, the Oklahoma statute regarding service
provides, in pertinent part:
shall be made as follows:
(1) upon an individual other than an infant who is less than
fifteen (15) years of age or an incompetent person, by
delivering a copy of the summons and of the petition
personally or by leaving copies thereof at the person's
dwelling house or usual place of abode with some person then
residing therein who is fifteen (15) years of age or older or
by delivering a copy of the summons and of the ...