United States District Court, D. Utah
GENA GOLDEN, an individual and SUSAN GOLDEN, an individual, Plaintiffs,
MENTOR CAPITAL, INC., a Delaware corporation, LABERTEW & ASSOCIATES, a Utah limited liability company, and MICHAEL L. LABERTEW, an individual, Defendants. MENTOR CAPITAL, INC., a Delaware corporation, Third-Party Plaintiff,
RICHARD GOLDEN, an individual, and SCOTT VAN RIXEL, an individual, Third-Party Defendants.
MEMORANDUM DECISION AND ORDER DENYING THIRD-PARTY
DEFENDANT, SCOTT VAN RIXEL'S MOTION TO DISMISS
N. PARRISH, UNITED STATES DISTRICT JUDGE
the court is Third-Party Defendant, Scott Van Rixel's
(“Van Rixel”), Motion to Dismiss the Third-Party
Complaint (“Complaint”) of Third-Party Plaintiff,
Mentor Capital, Inc. (“Mentor”), pursuant to
Fed.R.Civ.P. 12(b)(5) for insufficient service of process.
Van Rixel argues that dismissal is appropriate because
service of the Complaint and summons was accomplished after
the 90-day time limit established in Rule 4(m) and good cause
does not exist for the delay. For the reasons articulated
below, the court DENIES Van Rixel's motion to dismiss.
March 14, 2016, Mentor took the deposition of Van Rixel in a
related action pending before the American Arbitration
that deposition, Van Rixel provided his business address, but
initially refused to give his home address, citing privacy
and security concerns.
Following the deposition, on April 26, 2016, Van Rixel's
attorney provided an address in Miami, Florida as Van
Rixel's residential address.
May 4, 2016, Mentor filed its Complaint with the court.
May 7, 2016, the process server whom Mentor had hired
informed Mentor that the Miami address was unoccupied and
that he had been informed that Van Rixel did not live at that
Mentor and Van Rixel participated in another arbitration held
in San Francisco for three days from May 9, 2016, until May
Although Mentor had allegedly experienced difficulty in
locating Van Rixel, Mentor chose not to serve Van Rixel at
the arbitration. Neither did Mentor ask Van Rixel or his
attorney for a current residential address during the
Between May and November 2016, Mentor alleges that it
“continued to search for a valid address” at
which to serve Van Rixel. But Mentor did not attempt to serve
Van Rixel at the business address he had given at the March
Mentor also failed to inquire of Van Rixel's counsel as
to his current residential address or to request that Van
Rixel's counsel waive service on his behalf.
November 15, 2016, 195 days after it filed its Complaint,
Mentor served Van ...