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Golden v. Mentor Capital, Inc.

United States District Court, D. Utah

August 3, 2017

GENA GOLDEN, an individual and SUSAN GOLDEN, an individual, Plaintiffs,
v.
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,
v.
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

          JILL N. PARRISH, UNITED STATES DISTRICT JUDGE

         Before 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.

         FACTS

         1. On March 14, 2016, Mentor took the deposition of Van Rixel in a related action pending before the American Arbitration Association.

         2. In that deposition, Van Rixel provided his business address, but initially refused to give his home address, citing privacy and security concerns.

         3. Following the deposition, on April 26, 2016, Van Rixel's attorney provided an address in Miami, Florida as Van Rixel's residential address.

         4. On May 4, 2016, Mentor filed its Complaint with the court.

         5. On 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 address.

         6. Both Mentor and Van Rixel participated in another arbitration held in San Francisco for three days from May 9, 2016, until May 11, 2016.

         7. 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 three-day arbitration.

         8. 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 deposition.

         9. 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.

         10. On November 15, 2016, 195 days after it filed its Complaint, Mentor served Van ...


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