The opinion of the court was delivered by: William J. Martini Judge
MARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURTHOUSE 50 WALNUT STREET, P.O. BOX 419 NEWARK, NJ 07101-0419 (973) 645-6340
This matter comes before the Court on Defendant AutoData Systems's Cross-Motion to Dismiss Plaintiff Millennium, L.P.'s Complaint Pursuant to Fed. R. Civ. P. 12(b)(2), 12(b)(5) and 12(b)(6). There was no oral argument. Fed. R. Civ. P. 78. For the following reasons, AutoData's motion is GRANTED in part and DENIED in part and Millennium's complaint is DISMISSED WITHOUT PREJUDICE.
Millennium, L.P. ("Millennium") filed its complaint against AutoData Systems ("AutoData") on March 22, 2005. The complaint alleges that AutoData is infringing five of its patents for an invention called "Information Processing Methodology." The complaint also contends that AutoData is a Minnesota corporation having its principal place of business in Minneapolis.
On June 14, 2005, Millennium attempted to serve AutoData by leaving a summons and complaint with a receptionist at AutoData's headquarters in Minnesota. Two weeks later, Millennium received a call from attorneys for a company called Electro-Sensors, Inc. ("Electro-Sensors"), which purportedly owns the trade name "AutoData Systems." Electro-Sensors's attorneys informed Millennium that service was improper because the receptionist was employed by Electro-Sensors and not AutoData, and therefore she was not authorized to receive service on AutoData's behalf. Furthermore, the attorneys informed Millennium that since "AutoData Systems" is merely a trade name owned by the Electro-Sensors, it is not an entity capable of being sued.
In an effort to promote a settlement, Millennium extended AutoData's time to respond to the complaint until September 6, 2005. When that date arrived, however, AutoData's attorneys did not answer or respond to the complaint. Instead, they sent facsimile to Millennium indicating, once again, that service was improper and that AutoData was not an entity capable of being sued. The following day, Millennium filed a motion for default judgment, which was subsequently vacated.*fn1 AutoData then filed a motion to dismiss Millennium's complaint for: (1) improper service under Fed. R. Civ. P. 12(b)(5); (2) lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2); and (3) lack of capacity to be sued under Fed. R. Civ. P. 12(b)(6) and 17(b). AutoData also requested that sanctions be levied against Millennium under 28 U.S.C. § 1927. AutoData's motion to dismiss and request for sanctions is presently before the Court.
A. Millennium's Complaint Must Be Dismissed Without Prejudice Under Fed. R. Civ. P. 12(b)(5) For Improper Service
Federal Rule of Civil Procedure 12(b)(5) permits a court to dismiss a case for "insufficiency of service of process." Fed. R. Civ. P. 12(b)(5). "The party asserting the validity of service bears the burden of proof on that issue." Grand Entm't Group v. Star Media Sales, 988 F.2d 476, 488 (3d Cir. 1993). Since Millennium alleges that AutoData is a domestic corporation, Millennium bears the burden of proving that service was effected within the confines of Fed. R. Civ. P. 4(h). See Fed. R. Civ. P. 4(h) (governing service of corporations and associations).
Under Fed. R. Civ. P. 4(h), a domestic corporation may be served by either: (1) "delivering a copy of the summons and ... complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process"; or (2) pursuant to the law of the state where the district court is located under Fed. R. Civ. P. 4(e)(1). See Fed. R. Civ. P. 4(h). In New Jersey, service upon a domestic corporation may be effected by personally serving:
[A]ny officer, director, trustee, or managing or general agent, or any person authorized by appointment or by law to receive service of process on behalf of the corporation, or on a person at the registered office of the corporation in charge thereof....
New Jersey Rules of Court 4:4-4(a)(6). New Jersey also allows a party to serve a corporation outside the state by mail "if it appears by affidavit ... that despite diligent effort and inquiry personal service cannot be made...." New Jersey Rules of Court 4:4-4(b)(1).
Millennium's complaint must be dismissed for improper service under Fed. R. Civ. P. 12(b)(5). Millennium provides no proof that the receptionist, upon whom service was attempted, was an officer, director, trustee, agent, or person authorized to receive process on AutoData's behalf, or that it effected service in accordance with New Jersey law.*fn2 Furthermore, Millennium does not offer any proof that it attempted service by any means other than personal delivery of ...