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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

James Jones, 

Plaintiff, 

v. 

Bank of America NA, et al., 

Defendants.

No. CV-17-08231-PCT-SMB

ORDER 

Pending before the Court is Defendant Bank of America, N.A.’s Motion To Dismiss 

Plaintiff’s Amended Complaint Pursuant to Fed. R. Civ. P. 4, 12(b)(4), And/Or 12(b)(5) 

or, Alternatively, To Quash Service of Summons. (Doc. 20). 

BACKGROUND 

On November 6, 2017, Plaintiff filed a Complaint against multiple defendants, 

including Bank of America, N.A. (“BANA”). That complaint was dismissed and an 

Amended Complaint (“FAC”) was filed on January 26, 2018 with court approval. 

Defendant also filed a motion for change of judge on that same day. On August 2, 2018, 

the Court issued an order denying Plaintiff’s motion for change of judge, but granting his 

request for service by United States Marshal pursuant to Fed. R. Civ. P. 4(c)(3). (Doc. 11). 

Specifically, the Court ordered that the “United States Marshal shall effect service of the 

Amended Complaint (Doc. 8)” and provided Plaintiff with specific instructions for serving 
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the summons and FAC in this manner. (Doc. 11 at 2– 3). Plaintiff provided the United 

States Marshal with an address but the Marshal was unable to complete service on BANA, 

which the Marshal reported on September 13, 2018. (Doc. 13). 

After the Marshal was unable to complete service of process, Plaintiff attempted 

service by mailing a copy of the summons and FAC to Bank of America, N.A., 100 N. 

Tryon St., Charlotte, NC 28255. (Doc 20 at Ex. A). It was not mailed to a specific person. 

See Id. The materials were mailed certified with return receipt requested. (Doc. 24 at 4 

(citing Ex. A)). On October 7, 2018, someone at the North Carolina address signed the 

mail receipt. (Doc. 23 at 2). The name is hard to read on the receipt but it looks like “Zaker 

Ayin”. (Doc. 23 at 6). Plaintiff also sent a copy of the documents by certified mail to Bank 

of America N.A., 10500 NE 8th St, 5th floor, Bellevue, WA, 98004. (Doc. 23 at 1). Again, 

the letter was not addressed to a specific person. Receipt for those documents was signed 

on October 10, 2018, by someone, but again the name is unclear. (Doc. 23 at 5). 

DISCUSSION 

I. Legal Standards 

“When service of process is challenged, a plaintiff bears the burden of showing that 

the court’s personal jurisdiction is properly exercised.” Grand Canyon Resort Corp. v. 

Drive-Yourself Tours, Inc., No. CV-05-03469-PHX-SMM, 2006 WL 1722314, at *2 (D. 

Ariz. June 22, 2006) (citing Hirsh v. Blue Cross Blue Shield, 800 F.2d 1474, 1477 (9th Cir. 

1986)). 

Service must be accomplished by an adult who is not a party to the case. See Fed. 

R. Civ. P. 4(c)(2). Under Federal Rule 4(h)(1)(B), service of process can be effected on a 

foreign corporation through delivery of the summons and complaint to “an officer, a 

managing or general agent, or any other agent authorized by appointment or by law to 

receive service of process.” Fed. R. Civ. P. 4(h)(1)(B). “When serving a corporation, Rule 

4(h) requires personal service on someone at the corporation, and service by mail to a 

general corporate address is not sufficient.” Belle v. Chase Home Fin. LLC, 2007 WL 
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1518341, at *3 (S.D.Cal.2007) (citing Larsen v. Mayo Med. Ctr., 218 F.3d 863, 868 (8th 

Cir. 2000) (service on corporation was ineffective “because the summons and complaint 

were mailed and not personally served on anyone during the limitations period.”)). 

Alternatively, the plaintiff may serve a corporate defendant in the manner prescribed for 

serving individuals, which permits service by following state law of the state where the 

district court is located or where service is made. Fed. R. Civ. P. 4(h)(1)(A); 4(e)(1). Here, 

the district court is located in Arizona. 

Under Arizona law, service on a corporation outside of Arizona may be 

accomplished as follows: 

If a domestic or foreign corporation, partnership, or other 

unincorporated association has the legal capacity to be sued 

and has not waived service under Rule 4.1(c), it may be served 

by delivering a copy of the summons and the pleading being 

served to a partner, an officer, a managing or general agent, or 

any other agent authorized by appointment or by law to receive 

service of process and—if the agent is one authorized by statute 

and the statute so requires—by also mailing a copy of each to 

the defendant. 

Ariz. R. Civ. Pro. 4.2. 

II. Analysis 

Defendant’s first argue that the complaint should be dismissed because Plaintiff did 

not follow the Court’s order to accomplish service through the United States Marshal. It 

is true that Plaintiff did not accomplish service through the Marshal’s office, but he did try. 

There is nothing in that order that would preclude Plaintiff from attempting service some 

other way if the Marshal’s office did not accomplish service. 

Defendants next argue that Plaintiff’s efforts at service fail because he mailed the 

documents himself. First, the Court notes that there is no authorization for service by 

certified mail on a corporation. Second, the Court agrees that Plaintiff is not allowed to 

serve the papers because he is a party to the case. 

Finally, Defendants argue that service is improper because Plaintiff did not serve 
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the proper person. Plaintiff, in his response, makes no effort to demonstrate that either 

person signing the certified mail receipts was “an officer, a managing or general agent, or 

any other agent authorized by appointment or by law to receive service of process.” Fed. 

R. Civ. P. 4(h)(1)(B). Plaintiff offered no explanation for why he did not make an effort 

to locate the proper person to accept service. Plaintiff argues that any employee is an agent 

authorized to receive service of process. Serving an employee who is not an officer, a 

managing or general agent, or an agent authorized to accept service does not satisfy the 

requirements for proper service. See Williams v. GEICO Corp., 792 F. Supp. 2d 58, 65 

(D.D.C. 2011). The Court finds that service of process failed because it was not complete 

by a non-party, certified mail is not an acceptable form of service, and the summons and 

complaint were not mailed to a person authorized to accept service. 

Having found that service of process was insufficient, we have discretion to either 

dismiss without prejudice or to quash service of process. Grand Canyon Resort, 2006 WL 

1722314, at *7. The Ninth Circuit counsels “that the provisions of Rule 4 should be given 

a liberal and flexible construction.” Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984). 

It set out a four-part test for determining whether to dismiss a case due to a pro se plaintiff’s 

failure to comply with the personal service requirement. Dismissal is not required if “(a) 

the party that had to be served personally received actual notice, (b) the defendant would 

suffer no prejudice from the defect in service, (c) there is a justifiable excuse for the failure 

to serve properly, and (d) the plaintiff would be severely prejudiced if his complaint were 

dismissed.” Id. In this case, BANA has actual notice as they filed the current motion, 

BANA has not cited any prejudice they would suffer, there is not justifiable excuse for the 

failure to serve properly, and plaintiff has not explained what prejudice he would suffer. 

The Court concludes that the most efficient course of action is to quash service of 

process and provide plaintiff with the opportunity to properly serve BANA. Accordingly, 

IT IS ORDERED that: 

1. The motion to dismiss is DENIED; 

2. The motion to quash is GRANTED; 
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3. Plaintiff has until February 8, 2019 to either (a) properly service BANA, or (b) file 

a waiver of service under Fed. R. Civ. P. 4(d). Failure to accomplish either will 

result in dismissal of BANA as a defendant without further notice. 

Dated this 28th day of December, 2018.