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United States of America v. Dustin Bogart

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


October 12, 2012

UNITED STATES OF AMERICA
PLAINTIFF
v.
DUSTIN BOGART, MARCY BOGART, SOUTHERN COUNTRY RANCH, DEFENDANTS

The opinion of the court was delivered by: (Judge Conner)

ORDER

AND NOW, this 12th day of October, upon consideration of defendant Dustin Bogart's motion to strike (Doc. 13) the government's service of process against defendant Southern Country Ranch under Federal Rule of 12(b)(5),*fn1 which states in relevant part "[] a party may assert the following defenses by motion: [] insufficient service of process . . . ." Fed. Rule. Civ. Pro. 12(b)(5), and the court further acknowledging that Mr. Bogart does not contest that he was presented with a summons and a copy of the complaint as required by Federal Rule of Civil Procedure 4(e)(2), which provides process may be served by either "delivering a copy of the summons and of the complaint to the individual personally," Fed. R. Civ. Pro. 4(e)(2)(A), or "leaving a copy of each at the individual's dwelling or place of abode . . ., Fed. R. Civ. Pro. 4(e)(2)(B), or "delivering a copy of each to an agent authorized by appointment or by law to receive service of process," Fed. R. Civ. Pro. 4(e)(2)(C), and the court further noting that "a return of service by a private process server creates a rebuttable presumption that service was effectuated . . . [and a] bare allegation by a defendant that he was improperly served cannot be allowed to belie the private process server's return[,]"*fn2 Susquehanna Commercial Fin. v. French, Civ. No. 10-7481, 2011 WL 1743503, at *3 (E.D. Pa. 2011), and the court further observing that Mr. Bogart contends he is not a "trustee" of Southern Country Ranch, however, the court concluding that under Federal Rule of Civil Procedure 4(h)(1)(B), service may be affected on "an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service," Fed. R. Civ. Pro. 4(h)(1)(B), or by "following state law for serving a summons . . . in the state where the district court is located or service is to be made," Fed. R. Civ. Pro. 4(e), and the court being aware that under Pennsylvania law service of process is sufficient if it is served "at any office or usual place of business of the defendant . . . to the person for the time being in charge thereof [,]" Pa. R. Civ. Pro. (a)(2)(iii), and a "person for the time being in charge" can "be an individual with some direct connection to the party being served or someone who the process server deems to be authorized on the basis of [his or] her representation or authority, as evidenced by the affidavit of service[,] Collins v. Univ. of Pa., 35 Fed. App'x 352, 353 (3d Cir. 2002), and the court finding that Mr. Bogart is such an individual, it is hereby ORDERED that the motion to strike (Doc. 13), is DENIED.

CHRISTOPHER C. CONNER United States District Judge


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