Court Opinion: 10th Circuit Court of Appeals Opinion for Aug. 25

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Davis v. Koch

This appeal involved the validity of service by regular mail and the effect of a failure to comply with procedural requirements. These requirements include the time to serve the defendant and the method of conducting service under the Federal Rules of Civil Procedure. These methods don’t include regular mail, according to the 10th Circuit Court of Appeals opinion. So when a plaintiff relies on regular mail for service and the deadline expires, can a district court dismiss the action? A panel of the 10th Circuit out of Casper, Wyoming, answered yes.

In civil cases, the plaintiff must serve the defendants with the summons and complaint within 90 days after the plaintiff files the complaint.

Timothy Davis initiated legal proceedings against Stacie Koch with Corizon Health Wyoming. Davis insisted he mailed the summons and complaint to the defendant, but the district court considered the mailing insufficient for service, the opinion added. So the district court reminded Davis of his deadline and told him failure to timely serve the defendant would result in dismissal. When the deadline passed without further effort to serve the defendant or a request for more time, the district court dismissed the action.

Davis appealed, arguing he did serve the defendant and acted diligently. The 10th Circuit addressed these arguments under the abuse-of-discretion standard, pursuant to the decision Despain v. Salt Lake Area Metro Gang Unit. Applying this standard, the 10th Circuit concluded Davis didn’t properly serve the defendant and the failure to conduct proper service allowed the district court to dismiss the action.

The federal procedural rules state how plaintiffs are to serve the summons and complaint. Under these rules, the plaintiff can personally deliver the documents to the defendant or its agent, leave the documents with an adult who resides with the defendant or follow state law regarding service.

Davis stated he served the defendant through regular mail. This form of service doesn’t involve personal delivery to the defendant, its agent or a co-resident, the opinion noted. So the 10th Circuit considered only whether service by regular mail is authorized under state law.

In applying state law, the 10th Circuit considered the law of the state where the court is located or where the defendant was served which are both in Wyoming. Wyoming allows service by mail only when it’s registered or certified — not regular mail. So the mailing didn’t satisfy Davis’ obligation to serve the defendant, the opinion added. 

Davis argued he acted diligently even if the mailing didn’t suffice for service. According to the opinion, he was a layperson and presumably didn’t realize he had to do more than send the summons and complaint by regular mail. But even pro se plaintiffs must serve the defendant in a way that satisfies the procedural requirements, the opinion noted, citing the decision Jones v. Frank.

The district court would have had to extend the service deadline if Davis had made a showing of good cause, the opinion explained. But Davis didn’t tell the district court he had good cause or ask for more time to serve the defendant. Without an allegation of good cause or a request for more time, the district court had the discretion to dismiss the action, the opinion added, citing the decision Constien v. United States

The 10th Circuit affirmed the dismissal.

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