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Trenton v. Experian Information Solutions, Inc.

United States District Court, D. New Mexico

July 10, 2019

JOSEPH A. TRENTON, Plaintiff,
v.
EXPERIAN INFORMATION SOLUTIONS, INC., TRANS UNION, LLC, EQUIFAX INFORMATION SERVICES, LLC, HEALTHCARE COLLECTIONS, LLC DELIVERY FINANCIAL SERVICES, A 1 COLLECTIONS, LLC, and CREDIT COLLECTION SERVICES, Defendants.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT HEALTHCARE COLLECTIONS-I, L.L.C.'S MOTION TO DISMISS

         Defendant Healthcare Collections-I, LLC (HCI) asks the Court to dismiss it from this case because it received service of process that was intended for named defendant “Healthcare Collections LLC.” See DEFENDANT HEALTHCARE COLLECTIONS-I, L.L.C.'S MOTION TO DISMISS (Doc. No. 28) (Motion). To date, pro se Plaintiff Joseph Amaziah Trenton (Plaintiff) has not filed a response to the Motion. Specifically, HCI asks the Court to dismiss it as a party or acknowledge that HCI is not a party defendant in this case because HCI has no association “with any business identified as Healthcare Collections, LLC.” (Mot. at 1.) Based on the record in this case and the public records related to HCI, the Court will deny the Motion without prejudice.

         I. BACKGROUND[1]

         On July 10, 2018, Plaintiff pro se brought his ORIGINAL COMPLAINT (Doc. No. 1) (Complaint) alleging that Defendants violated the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 et seq. and the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. On July 16, 2018, Magistrate Judge Laura Fashing granted Plaintiff's application to proceed in forma pauperis. See MEMORANDUM OPINION AND ORDER (Doc. No. 4). After filing the Complaint, Plaintiff was able to effect service of process on Defendants Experian Information Solutions, LLC and Equifax Information Services, LLC. On March 20, 2019, Magistrate Judge Fashing ordered Plaintiff to provide physical addresses for the Defendants who had not been served. See ORDER TO PROVIDE PHYSICAL ADDRESSES (Doc. No. 13). On April 11, 2019, Magistrate Judge Fashing ordered the United States Marshal's Service to personally serve the Defendants at those addresses. See ORDER TO SERVE (Doc. No. 15) (citing 28 U.S.C. § 1915(d)). In relevant part, the Order to Serve stated that service is to be made on “Healthcare Collections LLC” at “2432 W. Peoria Ave. Phoenix, AZ 85029.” (Id. at 2.)

         On May 9, 2019, a United States Marshal filed a PROCESS RECEIPT AND RETURN (Doc. No. 23) (Process Return) indicating that a United States Marshal served Mr. Mac Johnson, Compliance Officer for “Healthcare Collections” at 2224 W. Northern Avenue, Phoenix, AZ.

         On May 15, 2019, Plaintiff filed a NOTICE OF VOLUNTARY DISMISSAL OF DEFENDANT A-1 COLLECTIONS, LLC WITHOUT PREJUDICE (Doc. No. 38) (Notice). In the Notice, Plaintiff voluntarily dismissed this action “against HEALTHCARE COLLECTIONS LTD, Limited Liability Company, dba A-1 Collection Agency, LLC.” (Id.)[2]

         In the Motion, HCI contends that “[a] United States Marshal delivered a copy of a summons from this matter to HCI at its principal place of business in Peoria, Arizona.”[3] (Mot. at 1.) The address indicated on the Process Receipt (2224 W. Northern Ave.) for HCI is also listed on the Arizona Corporation Commission's website as HCI's principal place of business. See https://ecorp.azcc.gov/BusinessSearch/BusinessInfo?entityNumber=L10633604 (last visited July 1, 2019). However, there is an inactive entity listed on the Arizona Corporation Commission's website that is named Healthcare Collections, Inc. The website lists Healthcare Collection, Inc.'s address as 2432 W. Peoria Avenue, Phoenix AZ, the same address provided for Healthcare Collections LLC on Magistrate Judge Fashing's Order to Serve. See https://ecorp.azcc.gov/BusinessSearch/BusinessInfo?entityNumber=02348034 (last visited July 1, 2019). Mr. Paul Peach is listed as CEO, President, and a Director of Healthcare Collections, Inc. Id. Mr. Peach is listed as a Manager of HCI. https://ecorp.azcc.gov/BusinessSearch/BusinessInfo?entityNumber=L10633604 (last visited July 1, 2019).

         Although HCI correctly claims it has no association with “any business identified as Healthcare Collections, LLC[, ]” it appears that HCI may have an association with Healthcare Collections, Inc. In addition to HCI and Healthcare Collections, Inc., the Arizona Corporation Commission's website lists two other entities with similar names: Healthcare Collections Ltd, Limited Liability Company, which has been dismissed, and Healthcare Collections Services, Inc. The Arizona Corporation Commission website lists no address for Healthcare Collection Services, Inc.

         In summary, there appear to be three entities with similar names that are connected to this case: (1) HCI, which was served at its address 2224 W. Northern Avenue in Phoenix; (2) Healthcare Collections, Inc., whose address is 2432 W. Peoria Avenue in Phoenix-the address provided in the Order to Serve; and (3) Healthcare Collections Ltd, Limited Liability Company dba A-1 Collection Agency, LLC, which has been served and which Plaintiff voluntarily dismissed from this action.

         II. LEGAL STANDARD

         HCI's Motion states the following:

A United States Marshal delivered a copy of a summons from this matter to HCI at its principal place of business in Peoria, Arizona. However, the named defendant on the summons and in this case is Healthcare Collections, LLC, and not HCI. HCI is not associated with any business identified as Healthcare Collections, LLC and does not have authority to accept service on behalf of Healthcare Collections, LLC. It appears that plaintiff has either named or served the wrong party.

(Mot. at 1) (emphasis added). HCI further states, “[a]lthough not named as a defendant, HCI submits this responsive pleading within the deadline to do so after being served with the summons and moves the Court for an order dismissing it as a party in this lawsuit.” (Id.) However, HCI has not indicated the rule or legal authority that supports dismissal.

         “Effectuation of service is a precondition to suit....” Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998). Without proof of service, the Court lacks personal jurisdiction over the Defendant. Potter v. Johnson, 13-CV-00116-PAB-NYW, 2015 WL 1258653, at *3 (D. Colo. Mar. 17, 2015) (unpublished). Rule 4 provides in relevant part that a summons must be served with a copy of the complaint. Fed.R.Civ.P. 4(c)(1). A Marshal must be ordered to serve if the plaintiff is proceeding in forma pauperis. Fed.R.Civ.P. 4(c)(3). Under Rule 4(h), a corporate entity may be served by delivering a copy of the summons and complaint to an officer, managing agent, or general agent. Proof of service must be made to the court. Fed.R.Civ.P. 4(1)(1). “If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m).

         Rule 12 governs motions to dismiss for insufficiency of service. A “Rule 12(b)(5) motion challenges the mode of delivery or the lack of delivery of the summons and complaint.” Ueding v. Chris, 17-CV-01365-KLM, 2018 WL 4680343, at *3 (D. Colo. Sept. 28, 2018) (unpublished) (quoting 5B The Late Charles Alan Wright, et al., Federal Practice & Procedure § 1353 (3d ed.)). A motion under Rule 12(b)(4) concerns the form of the process rather than the manner or method of its service. Technically, a Rule 12(b)(4) motion is proper only to challenge noncompliance with the provisions of Rule 4(b) or any applicable provision that deals specifically with the content of the summons. 5B The Late Charles Alan Wright, et al., Federal Practice & Procedure § 1353 (3d ed.). See also Dixie Restaurants, Inc. v. Philips Consumer Electronics Co., No. 02-2461 D/A, 2005 WL 948802, at * 3 (M.D. Tenn. Feb. 18, 2005) (unpublished) (denying pretrial challenge under Rule 12(b)(4) that plaintiff ...


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