Motion to Quash Service of Process — OTO Analytics v. Benworth (D.E. 37) (N.D. Cal. No. 3:24-cv-03975)

Record facts

U.S. District Court for the District of Puerto Rico · No. 3:23-cv-01034-GMM · Doc. 37 · 2023-03-30 · Docket on CourtListener

Full text

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF PUERTO RICO 
 
OTO ANALYTICS, LLC,  
 
Plaintiff, 
 
v. 
 
BENWORTH CAPITAL PARTNERS PR, 
LLC; 
BENWORTH 
CAPITAL 
PARTNERS, 
LLC; 
BERNARDO 
NAVARRO and CLAUDIA NAVARRO, 
 
Defendants. 
 
 
 
 
Civil No. 23-01034 (GMM) 
 
 
 
CODEFENDANTS BERNARDO AND CLAUDIA NAVARRO’S MOTION TO QUASH 
SERVICE OF PROCESS PURSUANT TO FED. R. CIV. P. 12(b)(5) 
 
TO THE HONORABLE COURT: 
 
 
COME NOW Codefendants Bernardo and Claudia Navarro (“Mr. and Mrs. Navarro”), by 
special appearance and without submitting to the jurisdiction or venue of this Honorable Court nor 
waiving any defense, through the undersigned counsel, and very respectfully move to quash the 
attempted service of process upon them under Federal Rule of Civil Procedure (“Rule”) 12(b)(5) 
for failure to comply with Rule 4(e), on the following grounds:  
I. 
INTRODUCTION 
On February 27, 2023, Plaintiff Oto Analytics, LLC f/k/a Oto Analytics, Inc. d/b/a Womply 
(“Womply”) filed two Affidavits of Service asserting that Mr. and Mrs. Navarro were purportedly 
served on February 7, 2023.  [D.E. 23, 24].1  However, the service of process procured by Womply 
failed to comply with any of the possible avenues allowed under Rule 4(e) for serving process on 
 
1 On February 28, 2023, Mr. and Mrs. Navarro each specially appeared and requested 30-day extensions of time, until 
March 30, 2023, to answer or otherwise plead against the Complaint [D.E. 25, 26].  Although said motions are pending 
before this Honorable Court, Mr. and Mrs. Navarro timely appear within the term sought and file the instant motion 
to quash service of process under Rule 12(b)(5). 
Case 3:23-cv-01034-GMM     Document 37     Filed 03/30/23     Page 1 of 8

Codefendants Bernardo and Claudia Navarro’s Motion to Quash Service of Process… 
Oto Analytics, LLC v. Benworth Capital Partners PR LLC, et al. 
Civil No. 23-01034 (GMM) 
Page 2 of 8 
 
an individual in their personal capacity.   
It is undisputed that Womply did not serve Mr. and Mrs. Navarro personally or at their 
home or place of abode. [D.E. 23 at 1; D.E.  24 at 1]. Therefore, service cannot be found as 
sufficient under subsections (A) or (B) of Rule 4(e)(2)(B), or the state law governing summons 
pursuant to Rule 4(e)(1).  Instead, Womply attempted to serve process upon Mr. and Mrs. Navarro 
by delivering the Summons and copy of the Complaint through Ms. Alondra Gómez (“Gómez”), 
who the process server describes as an “Office Administrator” that allegedly stated she was 
authorized to accept service on behalf of Mr. and Mrs. Navarro. [D.E. 23 at 1; D.E. 24 at 1]. Yet, 
this contention is incorrect.  As it turns out, Ms. Gómez is not an agent authorized by appointment 
or by law to receive service on behalf of Mr. and Mrs. Navarro.  See Exhibits A and B, Declarations 
of Mr. and Mrs. Navarro at ¶¶ 5-6.  Therefore, service is also deficient under subsection (C) of 
Rule 4(e)(2), governing service of process on an individual through their authorized agent.   
Mr. and Mrs. Navarro respectfully request that, pursuant to Rule 12(b)(5), the Court quash 
the service of process noticed at Docket Entries 23 and 24, for failure to comply with any of the 
strictures of Rule 4(e) governing service on an individual and require Womply to effectuate service 
of process in compliance with the law. 
II. 
STANDARD OF REVIEW 
A. 
Federal Rule of Civil Procedure (12)(b)(5). 
It is a bedrock principle that federal courts lack jurisdiction over a defendant unless 
properly served.  See, e.g., Somascan, Inc. v. Phillips Med. Sys. Nederland B.V., Civil No. 09-
1139 (ADC), 2009 WL 4730771, at *2 (D.P.R. Nov. 13, 2009).   
Rule 12(b)(5) allows a defendant to challenge “the mode of delivery or the lack of delivery 
of the summons and complaint.”  Fernández-Salicrup v. Figueroa-Sancha, Civil No. 10-1975 
Case 3:23-cv-01034-GMM     Document 37     Filed 03/30/23     Page 2 of 8

Codefendants Bernardo and Claudia Navarro’s Motion to Quash Service of Process… 
Oto Analytics, LLC v. Benworth Capital Partners PR LLC, et al. 
Civil No. 23-01034 (GMM) 
Page 3 of 8 
 
(ADC), 2011 WL 13135962, at *1 (D.P.R. May 2, 2011) (citing 5B C. Wright & A. Miller, Federal 
Practice and Procedure § 1353 (3d ed. 2002)).  Thus, “[i]f the challenge is in ‘the manner in which 
[the] process or service of process was performed,’ the same is analyzed under Rule 12(b)(5).”  Id. 
(citations omitted). 
The initial burden of establishing insufficiency of service is on the moving party.  Ramírez 
de Arellano v. Colloides Naturels Int., 236 F.R.D. 83, 85 (D.P.R. 2006).  Once this burden has 
been met, the plaintiff must prove that service was in fact proper.  Somascan, Inc., 2009 WL 
4730771 *3 (citing Sáez Rivera v. Nissan Mfg. Co., 788 F. 2d 819, 821 (1st Cir. 1986)). 
To determine if there was “insufficient service of process” under Rule12(b)(5), the Court 
must determine if service upon Mr. and Mrs. Navarro was performed in compliance with Rule 4(e) 
governing service on individuals in their personal capacities.  As will be demonstrated, Womply 
did not effectuate valid service of process upon Mr. and Mrs. Navarro under either Rules 4(e)(1) 
or 4(e)(2).  Accordingly, this Honorable Court should quash the attempted service of process under 
Rule 12(b)(5). 
III. 
ARGUMENT 
A. The attempted service of process upon Mr. and Mrs. Navarro failed to comply 
with Rule 4(e) and, thus, should be quashed under Rule 12(b)(5). 
 
As indicated, on February 27, 2023, Womply filed two Affidavits of Service from its 
process server attesting, in pertinent part, as follows: 
“[t]hat on 2/7/2023 at 10:35 AM, I served Bernardo [and Claudia] Navarro with the 
Summons and Complaint at Benworth Capital Partners PR LLC, 954 Ave. Ponce 
de León, Suite 205, San Juan, Puerto Rico 00907 by serving Alondra G[ó]mez, 
Office Administrator, who stated that he/she is authorized to accept service on 
behalf of Bernardo [and Claudia] Navarro. 
 
[…] 
 
Case 3:23-cv-01034-GMM     Document 37     Filed 03/30/23     Page 3 of 8

Codefendants Bernardo and Claudia Navarro’s Motion to Quash Service of Process… 
Oto Analytics, LLC v. Benworth Capital Partners PR LLC, et al. 
Civil No. 23-01034 (GMM) 
Page 4 of 8 
 
That in addition to the service noted above, the address listed above is Bernardo 
[and Claudia] Navarro’s business address.” 
 
[D.E. 23 at 1; D.E. 24 at 1].  The service of process procured in this manner is insufficient, as it 
fails to comply with any of the possible avenues for effective service upon an individual under 
Rule 4(e)and warrants its quashing. 
(i) 
Womply did not comply with Rule 4(e)(1) and subsections (A) and (B) of 
Rule 4(e)(2), which govern service to the individual personally or through 
their authorized agent. 
 
Rule 4(e)(1) provides that an individual may be served by “following state law for serving 
a summons in an action brought in courts of general jurisdiction in the state where the district court 
is located or where service is made.”  Under Rule 4.4(a) of the Puerto Rico Rules of Civil 
Procedure, process must be served upon an individual “personally or to an agent authorized by 
him or appointed by law to receive service of process.” P.R. Laws Ann. tit. 32 Ap. V, R. 4.4(a) 
(emphasis added); see Fernández-Salicrup, 2011 WL 13135962, at *1 n.2 (citing former Rule 
4.4(a) of the Puerto Rico Rules of Civil Procedure of 1979, P.R. Laws Ann. tit. 32 Ap. III, R. 
4.4(a), stating that the “Puerto Rico Rules of Civil Procedure were amended by Law 220 of 
December 29, 2009, yet the text of Rule 4.4 remained unchanged.”).   
Similarly, subsections (A) and (C) of Rule 4(e)(2) allow an individual to be served by 
“delivering a copy of the summons and of the complaint to the individual personally” or 
“delivering a copy of each to an agent authorized by appointment or by law to receive service 
of process.” See Fernández-Salicrup, 2011 WL 13135962, at *2 (emphasis added). 
The Affidavits of Service in this case reflect that Womply did not serve Mr. and Mrs. 
Navarro personally but rather through Ms. Gómez.  [D.E. 23 at 1; D.E. 24 at 1].  Yet, Ms. Gómez 
is not now, nor has she ever been, an agent authorized by Mr. and Mrs. Navarro to receive process 
Case 3:23-cv-01034-GMM     Document 37     Filed 03/30/23     Page 4 of 8

Codefendants Bernardo and Claudia Navarro’s Motion to Quash Service of Process… 
Oto Analytics, LLC v. Benworth Capital Partners PR LLC, et al. 
Civil No. 23-01034 (GMM) 
Page 5 of 8 
 
on their behalf, nor is Ms. Gómez authorized by law to receive service on their behalf.  See Exhibits 
A and B, Declarations of Mr. and Mrs. Navarro at ¶¶ 5-6; see Fernández-Salicrup, 2011 WL 
13135962, at *2 (citing Pérez-López v. Mangome, 117 F.R.D. 327, 328 (D.P.R. 1987) (service on 
the administrative assistant of the Police Department Legal Division did not qualify as effective 
service on the individual defendants)). Therefore, process was insufficient as to Mr. and Mrs. 
Navarro under either Rule 4(e)(1) or subsections (A) and (C) of Rule 4(e)(2). 
The option of service through an agent under subsection (C) of Rule 4(e)(2) ordinarily 
requires an “actual appointment for the specific purpose of receiving process” and “[t]he burden 
remains on the plaintiff to prove that an agency relationship existed between the [defendant] and 
[the individual who accepted service].”  See, e.g., Nyholm v. Pryce, 259 F.R.D. 101, 104 (D.N.J. 
2009).  The judicial construction of “agency by appointment” provides that the fact that an “agent” 
receives and accepts a service of process does not necessarily bind a defendant.  Evidence must 
show that the defendant intended to confer the agent with the specific authority to receive process.  
See 5A C. Wright & A. Miller, Federal Practice and Procedure § 1097 (3d ed. 2002), cited in 
Fernández-Salicrup, 2011 WL 13135962 *2. 
Mr. and Mrs. Navarro’s averment under penalty of perjury that Ms. Gómez is not their 
agent, see Exhibits A and B, Declarations of Mr. and Mrs. Navarro at ¶¶ 5-6, “suffices to rebut the 
presumption of proper service created by the return of service.” Martell-Rodríguez v. González-
Rosario, Civil No. 09-1576 (JAF), 2010 WL 500402, at *1 (D.P.R. Feb. 4, 2010) (finding service 
insufficient under both Rule 4(e) and Puerto Rico Rule 4.4) (citing Blair v. City of Worcester, 522 
F.3d 105, 111 (1st Cir. 2008)).  Based on that undeniable reality, Womply will be unable to meet 
the required burden of proving that an agency relationship existed between Ms. Gómez and Mr. 
and Mrs. Navarro when service was attempted, much less with the express intent to confer the 
Case 3:23-cv-01034-GMM     Document 37     Filed 03/30/23     Page 5 of 8

Codefendants Bernardo and Claudia Navarro’s Motion to Quash Service of Process… 
Oto Analytics, LLC v. Benworth Capital Partners PR LLC, et al. 
Civil No. 23-01034 (GMM) 
Page 6 of 8 
 
agent with the specific authority to receive process on their behalf.  Therefore, the service of 
process effected upon Mr. and Mrs. Navarro through Ms. Gómez as their purported authorized 
agent also fails under subsection (C) of Rule 4(e)(2). 
For these reasons, Womply failed to comply with either Rule 4(e)(1) or subsections (A) 
and (C) of Rule 4(e)(2), governing service to the individual personally or through their authorized 
agent, and service of process should be quashed under Rule 12(b)(5). 
(ii) Womply failed to comply with Rule 4(e)(2)(B), which governs service to the 
individual at their dwelling or usual place of abode. 
 
Alternatively, subsection (B) of Rule 4(e)(2) allows an individual to be served by “leaving 
a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age 
and discretion who resides there.”  However, Womply’s chances under this Rule fare no better.   
 
Fatefully for Womply, it did not serve Mr. and Mrs. Navarro at their dwelling or place of 
abode.  See Exhibits A and B, Declarations of Mr. and Mrs. Navarro at ¶ 4.  Therefore, leaving the 
documents with Ms. Gómez was insufficient to comply with the service requirements of subsection 
(B) of Rule 4(e)(2).  It is well settled that, under this Rule, service papers “cannot be left at a 
defendant’s workplace with a third party since it does not constitute the ‘usual place of abode’ as 
required by the cited rule.”  Fernández-Salicrup, 2011 WL 13135962, at *2 (citing Boateng, 188 
F.R.D. at 28).  Beyond that, the fact that service was made at Mr. and Mrs. Navarro’s alleged place 
of business does not remedy these defects since the Rules do not specifically authorize serving 
individuals by leaving a copy of the summons and the complaint at the individual’s place of 
business. See Boateng, 188 F.R.D. at 28; Pérez-López, 117 F.R.D. at 328. 
For these reasons, Womply’s attempted service of process upon Mr. and Mrs. Navarro was 
also insufficient under subsection (B) of Rule 4(e)(2), governing service of process at the 
Case 3:23-cv-01034-GMM     Document 37     Filed 03/30/23     Page 6 of 8

Codefendants Bernardo and Claudia Navarro’s Motion to Quash Service of Process… 
Oto Analytics, LLC v. Benworth Capital Partners PR LLC, et al. 
Civil No. 23-01034 (GMM) 
Page 7 of 8 
 
individual’s home, and service of process should be quashed under Rule 12(b)(5). 
IV. 
CONCLUSION 
Mr. and Mrs. Navarro have demonstrated that delivery of the Summons and the Complaint 
through Ms. Gómez was insufficient service of process under Rule 4(e) and, therefore, the same 
should be quashed under Rule 12(b)(5).  As a result, this Honorable Court cannot exercise personal 
jurisdiction over Mr. and Mrs. Navarro.  Fernández-Salicrup, 2011 WL 13135962, at *2.  Womply 
should be required to perfect service upon Mr. and Mrs. Navarro in compliance with Rule 4(e) and 
applicable law.  
WHEREFORE, Mr. and Mrs. Navarro respectfully request this Honorable Court to grant 
this motion to quash under Rule 12(b)(5), deem the service of process upon Mr. and Mrs. Navarro 
as insufficient under Rule 4(e), and require Womply to effectuate proper service of process. 
CERTIFICATE OF SERVICE: We hereby certify that on this same date the foregoing 
motion was filed with the Clerk of the Court using the CM/ECF system, which will send 
notification of such filing to all attorneys and participants of record. 
RESPECTFULLY SUBMITTED. 
In San Juan, Puerto Rico, this 30th day of March, 2023. 
 
[SIGNATURE PAGE FOLLOWS] 
 
 
 
 
 
Case 3:23-cv-01034-GMM     Document 37     Filed 03/30/23     Page 7 of 8

Codefendants Bernardo and Claudia Navarro’s Motion to Quash Service of Process… 
Oto Analytics, LLC v. Benworth Capital Partners PR LLC, et al. 
Civil No. 23-01034 (GMM) 
Page 8 of 8 
 
 
 
PO Box 195168 
San Juan, PR 00919-5168 
Tel.: 787.766.7000 
Fax: 787.766.7001 
 
s/ Roberto A. Cámara-Fuertes 
Roberto A. Cámara-Fuertes 
USDC-PR 219002 
Email: rcamara@ferraiuoli.com 
 
s/ Jaime A. Torrens-Dávila 
Jaime A. Torrens-Dávila 
USDC-PR 223810 
Email: jtorrens@ferraiuoli.com 
 
/s/ Mónica Ramos Benítez 
Mónica Ramos-Benítez 
USDC-PR 308405 
Email: mramos@ferraiuoli.com 
 
Counsel for Bernardo Navarro 
 
 
 
CASELLAS ALCOVER & BURGOS PSC 
PO Box 364924 
San Juan, PR 00936-4924 
Tel. (787) 756-1400 
Fax. (787) 756-1401 
rcasellas@cabprlaw.com 
cloubriel@cabprlaw.com  
/s/ Ricardo F. Casellas 
USDC-PR Bar No. 203114 
/s/ Carla S. Loubriel Carrión 
USDC-PR Bar No. 227509 
 
Counsel for Claudia Navarro  
Case 3:23-cv-01034-GMM     Document 37     Filed 03/30/23     Page 8 of 8

File and source

File

gov.uscourts.prd.175040.37.0.pdf

Size

604,011 bytes

SHA-256

ab6de206ef89410ece15cee41b206275ee96ad297f478e4d48b2329db29a5c28

Our copy

gov.uscourts.prd.175040.37.0.pdf

Original

PACER (login required)