Lexplug logoLexplug

Kolker v. Hurwitz

District Court, D. Puerto Rico
269 F.R.D. 119 (2010)
ELI5:

Rule of Law:

Leaving a copy of a summons and complaint with a third-party, such as a security guard at a defendant's gated residence, does not constitute proper service of process under FRCP 4(e)(2)(B) unless there is evidence that the third-party has an express or customary duty to accept and relay such documents to the resident.


Facts:

  • In 1985, Paul Kolker and his wife purchased lot 19 in the Surfside community of Palmas del Mar to build a vacation home.
  • After his wife passed away in 1992, Kolker did not build the home but noticed his neighbor, Charles Hurwitz, had built a pool, gazebo, and installed a generator and garbage receptacle on a covenanted 'green area' adjacent to Kolker's property.
  • Kolker alleges these structures were built without his consent and violated restrictive covenants designed to preserve the area's natural state.
  • In January 2007, Hurwitz telephoned Kolker to seek permission for additional construction in the green area, which Kolker refused.
  • Kolker voiced his objections regarding Hurwitz's existing structures to the Palmas del Mar Architectural Review Board.
  • On September 2, 2009, Kolker observed new markings for construction in the green area, and the next day met with Hurwitz to discuss a proposed 30x30 foot gazebo, but they could not reach an agreement.

Procedural Posture:

  • Paul Kolker filed a complaint against Charles Hurwitz, Barbara Hurwitz, and other entities in the U.S. District Court for the District of Puerto Rico.
  • Kolker's process server attempted to serve the Hurwitz defendants by leaving copies of the summons and complaint with a security guard at their apartment complex in Texas.
  • Defendants Charles and Barbara Hurwitz filed a motion to dismiss the complaint against them for insufficient service of process under FRCP 12(b)(5).
  • Other defendants in the case filed a separate motion to dismiss for failure to state a claim.
  • Kolker filed a motion to amend his complaint in response to the motions to dismiss.

Locked

Premium Content

Subscribe to Lexplug to view the complete brief

You're viewing a preview with Rule of Law, Facts, and Procedural Posture

Issue:

Does leaving a copy of a summons and complaint with a security guard at the entrance of a defendant's apartment complex constitute proper service of process under Federal Rule of Civil Procedure 4(e)(2)(B)?


Opinions:

Majority - Pieras, Jr., J.

No. Leaving a copy of a summons and complaint with a security guard at the entrance of a defendant's apartment complex does not constitute proper service of process under FRCP 4(e)(2)(B) without proof that the guard is authorized or obligated to deliver such documents to residents. The court analyzed service under FRCP 4(e)(1) (state law) and FRCP 4(e)(2) (federal methods). Plaintiff failed to comply with either Puerto Rico or Texas law for service. Under FRCP 4(e)(2)(B), which allows leaving papers at the defendant's dwelling with a resident of suitable age, the plaintiff did not meet the requirements. The court distinguished this case from precedents like Manko, where a doorman was found to be a proper recipient because he was expressly authorized to accept and sign for all deliveries. Here, the plaintiff provided no evidence or argument that the security guard had any similar duty or authority to accept legal documents on behalf of the Hurwitzes. Without such proof, the guard is merely a third party, and service is deemed insufficient.



Analysis:

This case reinforces the strict procedural requirements for service of process, particularly in the context of multi-unit or secured residences. It clarifies that the burden is on the plaintiff to demonstrate that a third-party employee, like a security guard, has a specific, established duty to relay legal documents to residents for substituted service to be valid. The ruling discourages litigants from making assumptions about an employee's responsibilities and underscores the need for evidence to support the validity of service when it is not made directly upon the defendant or a co-resident. This decision serves as a practical guide for attorneys, highlighting the risks of relying on building staff for service without first confirming their authority.

G

Gunnerbot

AI-powered case assistant

Loaded: Kolker v. Hurwitz (2010)

Try: "What was the holding?" or "Explain the dissent"