Szabo v. Southwest Endocrinology Associates PLLC ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Maria Szabo, No. CV-20-01896-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Southwest Endocrinology Associates PLLC, et al., 13 Defendants. 14 15 Pending before the Court is Plaintiff’s ex parte motion for leave to serve Defendants 16 Manju Schorr and Daniel Schorr via alternative means (the “Motion”). (Doc. 10.) The 17 Motion will be granted. 18 BACKGROUND 19 On September 29, 2020, Plaintiff filed the Complaint (Doc. 1) and the following 20 day, summonses issued as to all Defendants (Doc. 4). 21 Plaintiff alleges as follows. Plaintiff was employed by Defendant Southwest 22 Endocrinology Associates PLLC (“Southwest”) and made contributions to Southwest’s 23 third-party 401(k) plan (“the Plan”). (Doc. 1 ¶¶ 10-13.) Plaintiff resigned in March 2013 24 and has requested, on multiple occasions, that Defendants remove Plaintiff as a listed 25 current employee so that she may “roll over her Plan balance to an IRA.” (Id. ¶¶ 15-19.) 26 Defendant Dr. Manju Schorr (“Dr. Schorr”)1 is the sole trustee of the Plan and she alone is 27 able to remove Plaintiff as a listed current employee of Southwest but has failed to do so. 28 1 Defendant Daniel Schorr (“Mr. Schorr”) is Dr. Schorr’s husband. (Doc. 1 ¶ 5.) 1 (Id. ¶¶ 12, 20, 26.) Plaintiff brings this action under the Employment Income Security Act 2 of 1974 (“ERISA”) and asserts causes of action for “breach of fiduciary duty” and 3 “interference with contract relationship or business expectancy.” (Id. ¶¶ 6, 29-44.) 4 Plaintiff’s Motion states that “[s]ervice was completed on Defendant Southwest 5 Endocrinology Associates, P.L.L.C., but such service had to be made in an unorthodox 6 manner under A.R.S. § 29-3119 (allowing service by certified mail) because Defendant 7 company failed to maintain a statutory agent.” (Doc. 10 at 2; see also Doc. 8.)2 8 Plaintiff attempted to serve Dr. and Mr. Schorr at their residential address on five 9 occasions in November, at various times of day, but these service attempts were 10 unsuccessful. (Doc. 6-1.) A neighbor confirmed that the Schorrs reside at that address but 11 stated that they “travel a lot” and are “constantly out of town.” (Id. at 3-4). Plaintiff’s 12 counsel also asserted in an earlier filing that he “made contact” with Dr. Schorr about this 13 lawsuit at some point before October 20, 2020, so she is aware of this lawsuit. (Doc. 6 at 14 2.) 15 DISCUSSION 16 Rule 4(e) of the Federal Rules of Civil Procedure provides that an individual (with 17 exceptions not relevant here) may be served in a judicial district of the United States by: 18 (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 19 located or where service is made; or 20 (2) doing any of the following: 21 22 (A) delivering a copy of the summons and of the complaint to the individual personally; 23 24 (B) leaving a copy of each at the individual’s dwelling or usual 25 2 A.R.S. § 29-3119(B) provides: “If a limited liability company or registered foreign limited liability company ceases to have a statutory agent, or if its statutory agent cannot 26 with reasonable diligence be served, the company or foreign company may be served by registered or certified mail, return receipt requested, or by a similar commercial delivery 27 service, addressed to the company or foreign company at its principal address.” Plaintiff first attempted to serve Southwest via its statutory agent, but the statutory agent resigned 28 on October 20, 2020. (Doc. 6 at 2; Doc. 6-6 at 2.) Therefore, service via certified mail was proper. 1 place of abode with someone of suitable age and discretion who resides there; or 2 3 (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. 4 Rule 4.1 of the Arizona Rules of Civil Procedure details the available state-law 5 procedures for serving process within Arizona. Under Rule 4.1(d) of the Arizona Rules, 6 an individual may be served within Arizona using the same methods outlined in Rule 7 4(e)(2) of the Federal Rules. Additionally, Rule 4.1(k) of the Arizona Rules provides for 8 alternative means of service: “If a party shows that the means of service provided in Rule 9 4.1(c) through Rule 4.1(j) are impracticable, the court may—on motion and without notice 10 to the person to be served—order that service may be accomplished in another manner,” in 11 which case “the serving party must make a reasonable effort to provide the person being 12 served with actual notice of the action’s commencement” and must, at a minimum, “mail 13 the summons, the pleading being served, and any court order authorizing an alternative 14 means of service to the last-known business or residential address of the person being 15 served.” 16 Arizona’s Rule 4.1(k) requires a showing of impracticability. Impracticability in 17 this context requires “something less than a complete inability to serve the defendant” and 18 even “something less than the ‘due diligence’ showing required before service by 19 publication may be utilized.” Blair v. Burgener, 245 P.3d 898, 901, 903-04 (Ariz. Ct. App. 20 2010). In the context of Rule 4.1(k), “impracticable” simply means that the traditional 21 means of service have proved to be “extremely difficult or inconvenient.” Id. at 903. 22 The Court finds that the traditional means of service have proved to be 23 impracticable. Plaintiffs’ proposed alternative means of service—mailing the court papers 24 required under Ariz. R. Civ. P. 4.1(k) to Dr. and Mr. Schorr’s residential address of 2298 25 E. Finley St., Gilbert, AZ 85296 via U.S. certified mail—constitutes “a reasonable effort 26 to provide the person being served with actual notice of the action’s commencement.” 27 Ariz. R. Civ. P. 4.1(k)(2). 28 Accordingly, 1 IT IS ORDERED that Plaintiffs’ Motion (Doc. 10) is granted. 2 IT IS FURTHER ORDERED that service on the Schorrs may be accomplished 3 || by mailing a copy of the Complaint, the Summonses, and this Order to their residence at 2298 E. Finley St., Gilbert, AZ 85296. 5 Dated this 29th day of December, 2020. 6 7 Lamy ee” g } t □□□ Dominic W. Lanza 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-