Miller Hardin & Holliday LLC v. Brimacombe et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Miller Hardin & Holliday LLC,
Plaintiff,
v.
E Bruce Brimacombe, et al.,
Defendants.
No. CV-26-02907-PHX-DWL
ORDER
On April 27, 2026, Plaintiff filed the complaint. (Doc. 1.)
On May 8, 2026, the Court issued its standard preliminary order, which states that
unless the Court orders otherwise, the Clerk of Court shall terminate without further notice
any Defendant in this action that has not been served pursuant to Rule 4(m) of the Federal
Rules of Civil Procedure within 90 days of filing the complaint. (Doc. 12.)
On May 11, 2026, Defendant E. Bruce Brimacombe (“Brimacombe”) filed a motion
to allow electronic filing by a party appearing without an attorney by filling out a form the
District of Arizona provides to pro se litigants. (Doc. 14.)
On May 12, 2026, the Court granted Brimacombe’s motion to file electronically.
(Doc. 15.)
On May 13, 2026, Plaintiff filed a “Motion for Relif [sic] from Order,” which seeks
relief from the Court’s standard preliminary order, specifically the “Doc. 12 requirement
for service [of process] . . . as a result of Brimacombe’s general appearance at Doc. 14.”
(Doc. 16 at 1.) According to Plaintiff, “Brimacombe voluntarily appeared in the matter by
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the filing of his motion, removing any ability for Brimacombe to claim lack of personal
jurisdiction.” (Id. at 2.) Plaintiff asks to be relieved of its duty to serve Brimacombe with
process and also asks the Court to order Brimacombe to provide his “email, mailing
address, and other contact information.” (Id. at 4.)
“A federal court is without personal jurisdiction over a defendant unless the
defendant has been served in accordance with [Rule 4 of the Federal Rules of Civil
Procedure].” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986). “Neither actual notice,
nor simply naming the person in the caption of the complaint, will subject defendants to
personal jurisdiction if service was not made in substantial compliance with Rule 4.”
Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (cleaned up). “Defendants can
waive the defect of lack of personal jurisdiction by appearing generally without first
challenging the defect in a preliminary motion or in a responsive pleading.” Id. In other
words, a defendant must assert the defense in its first response to the complaint—be that
an answer or a Rule 12 motion—or risk waiving the defense. Hays v. United Fireworks
Mfg. Co., 420 F.2d 836, 843-44 (9th Cir. 1969) (“When they did appear, [the defendants]
were entitled to assert the defense, under Rule 12(b)(4), that the action should be dismissed
as to them for insufficiency of process. Under that rule they could have asserted this
defense either by motion or by answer. Under Rule 12(b), however, if the defense is one
which may be made by motion, it may be so made only if the motion is filed before
pleading, if a further pleading is permitted. Moreover, Rule 12(g) provides that if a party
makes a motion under Rule 12 and does not include therein all defenses and objections
then available to him which the rule permits to be raised by motion, he shall not thereafter,
with exceptions not here relevant, make a motion based on any of the defenses or objections
so omitted.”).
Although failure to raise the defect of lack of personal jurisdiction in a response to
the complaint (an answer or a Rule 12 motion) will waive the defense, it does not follow
that failure to raise the defect in a form motion to allow electronic filing will similarly
waive the defense. In Benny, the plaintiff asserted that the defendants made a general
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appearance, and thereby waived any objection to service of process under Rule 4, by filing
three motions to extend the response deadline. 799 F.2d at 493. The Ninth Circuit
considered this a “close question” but concluded that filing motions to extend the response
deadline did “not manifest a ‘clear purpose’ to defend” and that “a motion to extend time
to respond gives no hint that the answer will waive personal jurisdiction defects, and is
probably best viewed as a holding maneuver while counsel consider how to proceed,” such
that the three motions “were insufficient to constitute a general appearance.” Id.
A motion to file electronically likewise gives no hint as to whether the response to
the complaint will waive personal jurisdiction defects. Such a motion strikes the Court as
even less participatory than a motion to extend the response deadline—a pro se litigant
who does not want the hassle of driving to the courthouse can file such a motion before
filing a motion to extend time, or for that matter, a response to the complaint, to enable
such documents to be filed from the comfort of home. Moreover, there is (unsurprisingly)
no place on the electronic filing form to indicate whether the defense of lack of personal
jurisdiction (or any other defense) will be asserted. Indeed, it would be odd and
incongruous to expect a defense to be asserted on a form motion that has nothing to do with
the merits of the case.
Finally, to the extent Plaintiff requests an order compelling Brimacombe to provide
accurate contact information (because the contact information specified in the motion to
file electronically is inaccurate), this request is denied as well. On this record, the Court
has no way to determine which side is correct about the accuracy of Brimacombe’s contact
information. With that said, Brimacombe is reminded of his obligation, under LRCiv
83.3(d), to provide accurate and updated address information in the event of a move.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for relief from the Court’s preliminary
order (Doc. 16) is denied.
Dated this 14th day of May, 2026.
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