Blackhawk Heating & Plumbing Co., Inc. v. Turner, 50 F.R.D. 144 (District of Ariz. (D. ARIZ) 1970)

ORDER

MUECKE, District Judge.

Defendant, pursuant to F.R.Civ.P. 12 (b) (5), has moved to dismiss the complaint or in lieu thereof, to quash the return of service made upon him “by leaving copies [of the summons and complaint] at his usual place of abode with some person of suitable age and discretion then residing therein .M1 F.R.Civ.P. 4(d) (1).

While admitting by his appearance herein that he has received actual notice of the pendency of this action, defendant nevertheless has claimed such notice was not received by him as required by F.R.Civ.P. 4(d) (1). He claims not to have been a resident of the apartment where service was made.

In cases where actual notice of suit has been received by defendant, Rule 4(d) (1) should be liberally construed to effectuate service. Nowell v. Nowell, 384 F.2d 951 (5th Cir. 1967),2 cert, denied, 390 U.S. 956, 88 S.Ct. 1053, 19 L.Ed.2d 1150 (1968); Karlsson v. Rabinowitz,3 318 F.2d 666 (4th Cir. 1963); Rovinski v. Rowe, 131 F.2d 687 (6th Cir. 1942); Hysell v. Murray, 28 F.R.D. 584 (S.D.Iowa 1961); Frasca v. Eubank, 24 F.R.D. 268 (E.D.Penn. 1959); Blane v. Young, 10 F.R.D. 109 (N.D.Ohio 1950); Zuckerman v. McCulley, 7 F.R.D. 739 (E.D.Mo.1947); Skidmore v. Green, 33 F.Supp. 529 (S.D.N.Y. 1940). See 2 J. Moore, Federal Practice [[ 4.11[2] (1967); 4 C. Wright & A. Miller, Federal Practice and Procedure § 1096 (1969). See generally C. Wright, Federal Courts § 64 (2d ed. 1970). The construction of the statutory language must be a natural rather than an artificial one. Nowell v. Nowell, supra, 384 F.2d at 953; Frasca v. Eubank, supra, 24 F.R.D. at 270. Notwithstanding the policy of liberal construction, in the final analysis each case must turn upon its own factual situation. Hysell v. Murray, supra, 28 F.R.D. at 587.

For this reason, the factual situation in this ease warrants detailed scrutiny. As pointed out in footnote 1, supra, service was attempted by leaving copies of the summons and complaint with defendant’s twenty-year old daughter, Sandy, at an apartment in Phoenix, Arizona on January 28, 1970. It is defendant’s contention that he and his wife moved from that address the day after Thanksgiving of 1969 intending never to return. Plaintiff, on the other hand, contends that the total circumstances were such that defendant, on the date of attempted service, had sufficient links with the apartment that it should be considered his “usual place of abode” within the meaning of Rule 4(d) (1).

Defendant is a private investigator. (Affidavit of George F. Turner, Jr., of Feb. 17, 1970). He and his family moved to Phoenix from Oklahoma City two or three years ago (Deposition of

Sandra Lynn Turner at 13) where they had lived for fifteen years. (Deposition of Jan Elizabeth Turner at 5). Since August of 1967, he has been renting the apartment at which service of process herein contested was made. (Deposition of Helen Buell at 7). There is evidence that defendant, since September of 1969, has sought to avoid service of process. (Deposition of Philip R. Thompson at 6-9; Deposition of Helen Buell at 13).

Some 150 hours were expended by a process server in attempting to serve defendant with a deposition subpoena in Blackhawk Heating & Plumbing Co. v. United Bonding Ins. Co., No. 67 C362, a related lawsuit pending in the Northern District of Illinois. (Affidavit of Thomas C. Hadley). At the defendant’s request, for example, the apartment management where he lived, on September 15, 1969, temporarily barred admittance to the building of any one desiring entrance to defendant’s apartment (Ex. 2) and on September 19, 1969, adopted regulations to control entrance to the building by officers of the court. (Ex. D.

That defendant as of the date of service, and as late as March 11, 1970, paid the rent on the apartment is beyond dispute. (Depositions of Sandra Lynn Turner at 12, James N. Marinaro at 18, George Franklin Turner, III at 10, and Helen Buell at 7). The apartment project manager as of the date of service and as late as March 11, 1970 had received no notice of defendant’s move, which defendant alleges was consummated the day after Thanksgiving of 1969.

Mr. Buell’s employer, the broker who manages the apartment, agrees:

That defendant left the family furniture in the Phoenix apartment is beyond dispute. (Depositions of Sandra Lynn Turner at 11, Jan Elizabeth Turner at

10, George Franklin Turner, III at 14, and James N. Marinaro at 11).

That the two family automobiles are still in Phoenix is beyond dispute. (Depositions of Sandra Lynn Turner at 11, Jan Elizabeth Turner at 13, George Franklin Turner, III at 12, and James N. Marinaro at 12).

That defendant as of the date of service and as late as March 2, 1970 received his mail at the Phoenix apartment is beyond dispute. (Depositions of Sandra Lynn Turner at 11 and George Franklin Turner, III at 9). That he, as late as March 24, 1970, had left no forwarding address with the United States Post Office (Affidavit of Elmer B. Cottrell, Custodian of Records of U.S. Post Office, Phoenix, Arizona) is not disputed, although his son provides a reason for the failure to leave a forwarding address: “the children are at the apartment to get the mail.” (Deposition of George Franklin Turner, III at 10).

That defendant caused 1970 Phoenix telephone listings for the 4750 North Central telephone to be made (Affidavit of David C. O’Neil, Custodian of Records of Mountain Bell Telephone Co.) is not disputed. That he made no attempt prior to the last date for cancellation to cancel them (O’Neil affidavit) is not disputed. That he made no attempt to disconnect the telephone service to the Phoenix apartment until February 25, 1970 (O’Neil affidavit) is not disputed. Nor is it disputed that telephone service was in fact disconnected on February 28, 1970. (O’Neil affidavit).

Against these objective facts upon which plaintiff relies to establish that defendant’s usual place of abode on the day in question was Apt. 10-K, 4750 North Central Avenue, Phoenix, Arizona, defendant submits the following:

As stated above, the process server, Jerry G. Lawrence, accompanied by Thomas C. Hadley, on January 28, 1970, left the summons and complaint at the apartment with defendant’s daughter, Sandra. We do not deem it particularly significant whether (1) the process server dropped the papers inside the apartment (Hadley affidavit) or (2) Joni Hoyle kicked the papers in mid-air causing them to land in the hall just outside the apartment. (Depositions of Sandra Lynn Turner at 5, Joni Hoyle at 7). It is uncontradicted that (1) the process server knocked on the door, (2) a young lady answered, (3) the process server asked if defendant was home, (4) the young lady answered in the negative, (5) the process server asked, “When do you expect him?” and (6) the young lady answered, “He is out of town but I think he will be back in a day or two.” (Affidavits of Jerry G. Lawrence and Thomas C. Hadley). Then asked her identity, the young lady replied, “I’m Sandy, George is my father.” (Affidavits of Lawrence and Hadley). Opposed to these two affidavits, Sandy, in her affidavit, stated that when asked if she expected defendant, she said “No.” (Affidavit of Sandra Lynn Turner). However, when at her deposition this affidavit was read to her and when asked if that is what happened, she said:

Her sister cannot remember either. (Deposition of Jan Elizabeth Turner at 13). Nor can Joni Hoyle. (Hoyle deposition at 6). Defendant’s son was asleep at the time. (Deposition of George Franklin Turner, III at 5).

The process server then tried to hand Sandy the summons and complaint (Affidavits of Lawrence and Hadley) but she tried to shut the door. (Affidavits of Lawrence and Hadley; Depositions of Sandra Lynn Turner at 5, Joni Hoyle at 7, and Jan Elizabeth Turner at 12). Thereupon, the papers landed either just inside or outside the door to Apartment 10-K, a fact we deem not relevant.

One other fact is here relevant: the method by which defendant received actual notice. As mentioned above, defendant is also involved in a lawsuit in the Northern District of Illinois.

There are a number of alternatives this Court could follow. We could refer this matter to a special master to take evidence. Neuburg Sales Serv. v. Mitchell Mfg. Co., 127 F.Supp. 250 (S.D.N.Y. 1955); Steinberg v. Landair Associated Corp., 10 F.R.D. 447 (S.D.N.Y.1950). But see Jones v. Davega Stores Corp., 10 F.R.D. 434 (S.D.N.Y.1950). We could, upon motion of a party, hold a preliminary hearing. F.R.Civ.P. 12(d). Or we could, based upon the evidence presently in the record, decide the service of process question: Was service of process on January 28, 1970 made upon defendant at “his * usual place of abode” by leaving copies of the summons and complaint “with some person of suitable age and discretion then residing therein?” F.R.Civ.P. 4(d) (1).

As the commentators, 2 J. Moore, Federal Practice, supra, and C. Wright & A. Miller, Federal Practice and Procedure, supra, point out, the “usual place of abode” phrase in Rule 4(d) (1) is derived from former Equity Rule 13 and

although it has long been present in the law, meaningful definitions of the phrase are few. We do not deem this an appropriate case to define the term; therefore, we make no attempt to do so. Although sometimes criticized,4 the thread tual notice” rule of Karlsson v. Rabinoof the “actual notice” rule of Karlsson v. Rabinowitz, swpra, and Nowell v. Nowell, supra, runs consistently throughout the opinions. Cases are collected in 2 J. Moore, Federal Practice, supra; C. Wright & A. Miller, Federal Practice and Procedure, supra; and Annot., 127 A.L.R. 1267 (1940).

An alternative has been proposed : “consider the totality of the circumstances surrounding the substituted service to determine whether in all probability the procedure used would inform the defendant of the proceedings against him.” Note, 17 U.Kan.L.Rev., supra. To this could be added that in cases where by his appearance (as is the case here) the defendant indicates that he has received actual notice of suit even though such notice has not been in strict accordance with the Rule, and there is no claim of immunity from process or prejudice by reason of the manner or time in which notice was received, it would seem absurd to argue that the defendant had not received notice. Whether this rule or that of Karlsson v. Rabinowitz, supra, is applied, we think there is sufficient nexus between defendant and Apartment 10-K, 4750 North Central Avenue, Phoenix, Arizona, to uphold this service of process in that the totality of circumstances were such as to make it likely that the defendant would receive notice of service, and that the plaintiff in making such service was justified under F.R.Civ.P. 4(d) (1). Justification arises from the circumstances related in this opinion: defendant (1) paid the apartment rent, (2) made no effort to leave a forwarding address or disconnect telephone service until after the date of service, (3) left all the furniture and both family automobiles in Phoenix, and (4) received actual notice. In addition, service was made upon defendant’s twenty-year old daughter. Her suitability of age and discretion is not questioned.

To attempt to distinguish the cases, e. g., Williams v. Capital Transit Co., 94 U.S.App.D.C. 221, 215 F.2d 487, in which service was made upon defendant’s estranged wife at her home as opposed to service here upon the daughter in the Phoenix apartment, or Di Leo v. Shin Shu, 30 F.R.D. 56 (S.D.N.Y.1961), in which service was made upon defendant’s daughter in her apartment, although defendant resided in a different apartment in the same building, would be fruitless.

IT IS ORDERED the motion to dismiss the complaint, or in lieu thereof to quash the return of service, is denied.