IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI AT INDEPENDENCE

Transcription

1 IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI AT INDEPENDENCE SAMUEL K. LIPARI, vs. NOVATION, LLC, et al. ) ) Plaintiff, ) ) ) ) ) ) Defendants. ) Case No CV04217 Division 2 MOTION TO DISMISS OF DEFENDANTS PIPER JAFFRA Y COMPANIES AND ANDREW DUFF AND SUGGESTIONS IN SUPPORT Defendants Piper Jaffray Companies and Andrew Duff, appearing specially to contest service of process and thereby the Court's jurisdiction over them, move for an Order of the Court, pursuant to Mo. R. Civ. P , dismissing all of the claims against them. As reasons for this motion and in further support thereof, defendants state: 1. Defendants, by their attorneys, have entered special appearances in this matter for the purpose of contesting service of process and jurisdiction over them. 2. The plaintiff Samuel Lipari filed this lawsuit on February 25, According to the Court's docket, plaintiff attempted to serve these defendants on March 4, According to the Court's docket, plaintiff filed returns of service on May 5, 2008 purportedly reflecting his service of process upon these defendants. (Exhibit "A".) 5. Defendants Piper Jaffray Companies and Andrew Duff submit that the service of process, sufficiency of service of process upon them was improper and the Court does not have jurisdiction over them. 6. Neither Piper Jaffray Companies nor Andrew Duff is alleged to be a citizen or resident of the State of Missouri. (Petition,-r,-r50, 51.)

2 7. In order to serve an out-of-state defendant, service must be made either by a person specially appointed by the Court to serve process or a person specifically authorized by law to serve process in the state. Mo. R. Civ. P. 54.l4(a). In addition, the return of service must be made under oath, sworn before a clerk, judge, or other person authorized to administer oaths. Mo. R. Civ. P (b). 8. Plaintiff purported to serve both Piper Jaffray Companies and Andrew Duff by leaving a copy of the summonses and petitions at an address for Piper Jaffray Companies, located at Overbrook Road, Suite 310, Leawood, Kansas. 9. The Court's docket does not reflect that Samuel Lipari (nor anyone else) was ever appointed a private special process server by Court Order to serve process upon Piper Jaffray Companies or Andrew Duff outside the State of Missouri. The return of service in the Court's docket does not show that the purported service was accomplished by a person authorized under Kansas law to serve a summons and petition. (Exhibit "A".) See Flair v. Campbell, 44 S.W.3d 444,451 (Mo. App. W.D. 2001). 10. Plaintiff did not properly complete the return of service, including but not limited to the fact that his signature is not contained on the return nor is there a notary seal or other indication that the return is sworn. (Exhibit "A".) 11. Plaintiff's attempted service of process upon out-of-state defendants Piper Jaffray Companies and Andrew Duff is insufficient and otherwise unlawful under Missouri Rules of Civil Procedure. See Russ v. Russ, 39 S.W.3d 895, 897 (Mo. App. E.D. 2001) (absent proof mandated by Rule 54.20, the Court lacks jurisdiction); see also State ex rel. Northwest Ark. Produce Co. v. Gaertner, 573 S.W.2d 391, (Mo. App. E.D. 1978) (jurisdiction not

3 acquired where service is improper); Mo. R. Civ. P (a); 54.20(b). Because these defendants have never been served properly, all claims against them must be dismissed. 12. In the alternative, and in addition to the plaintiff's fatal error in his failed service of process which necessitates that his claims be dismissed, defendants Piper Jaffray Companies and Andrew Duff hereby also adopt and incorporate all of the motions to dismiss, arguments and authorities relied upon by all other defendants seeking the dismissal of plaintiff's claims as if fully stated herein. WHEREFORE, for all of these reasons, defendants Piper Jaffray Companies and Andrew Duff request that the Court dismiss plaintiffs petition and each of its causes of action asserted against them, for their costs and attorneys' fees incurred herein, and for such other and further relief as the Court deems just and equitable. Respectfully submitted, MARK A. OLTHOFF SHUGHART THOMSON & K 120 W 12th Street, Suite 1700 Kansas City, Missouri (816) (816) (FAX) molthoff@stklaw.com

4 ANDREW M. DeMAREA MO #45217 JAY E. HEIDRICK MO #54699 SHUGHART THOMSON & KILROY, P.e. 32 Corporate Woods, Suite Indian Creek Parkway Overland Park, Kansas (913) (913) (FAX) ATTORNEYS FOR DEFENDANTS PIPER JAFFRA Y COMPANIES AND ANDREW DUFF

5 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was delivered postage prepaid, this ~ f1.. day of June, 2008, to: via United States Mail, Mr. Samuel K. Lipari 297 NE Bayview Lee's Summit, MO Plaintiff Peter F. Daniel, Esq. Lathrop & Gage LC 2345 Grand Boulevard Suite 2800 Kansas City, MO Attorneys for Defendant Lathrop & Gage LC John K. Power, Esq. Husch Blackwell Sanders LLP 2300 One Kansas City Place 1200 Main Street Kansas City, MO Attorneys for Defendant Husch Blackwell Sanders LLP John K. Power, Esq. Husch Blackwell Sanders LLP 2300 One Kansas City Place 1200 Main Street Kansas City, MO Veronica Lewis, Esq. Vinson & Elkins LLP 3700 Trammell Crow Center 2001 Ross Avenue Dallas, TX

6 Kathleen Bone Spangler, Esq. Vinson & Elkins LLP 2300 First City Tower 1001 Fannin Street Houston, TX Attorneys for Defendants Novation, LLC, VHA Inc., University Healthsystem Consortium, VHA Mid-America LLC; Thomas Spindler, Robert Bezanson, Gary Duncan, Maynard Oliverius; Sandra Van Trease; Charles Robb, Michael Terry, Cox Health Care Services of the Ozarks, Inc.; Saint Luke's Health System Inc. and Stormont-Vail Healthcare Inc. Attorneys for Defendants Piper Jaf and Andrew Duff

7 ( ( v IN the 16TH JUIJICIAL CIRCUIT COURT, JACKSON COUNTY, MISSOURI Case Number: 0816-CV04217 DefendantfRespondent: NOVA TION Nature CC Other of Suit: Tort LLC The State of Missouri to: ANDREW S DUFF Alias: 1 HALL BROOK PLACE SUITE OVERBROOK ROAD KANSAS CITY. KS COURT SEAL OF Plaintiff' s/petitioner ' s Attorney/Address: SAMUEL K LIP ARl 297 NE BA YVIEW vs, I LEES SUMMIT, MO Court Address: 308 W Kansas INDEPENDENCE, MO Summons for Personal Service Outside the State of Missouri t Attachment Action JACKSON COUNTY Further Information: I certify that: PRlVATE SERVER PROCESS.~~, ) '.,.;'.. M.'~.l<E'!C;;]Fi rr::tdnn ON THE 'NH:: t,:ei ;:C+iAI~D TO DEPT o- c/ ;:CORDS INO;:YEI~\.JtJ\~E, MO You are summoned to appear before this court and to file your pleading to the petition, copy of which is attached, and to serve a copy of your pleading upon the attorney for the Plaintiff/Petitioner at the above address all within 30 days after service of this summons upon you, e SIV the day of service. If you fail to file your pleading, ju~gment by AeAFt 5;4 b2~~~ against yo for the relic emanded in.thi - Dare Officer's or Server's Affidavit of Service ~-==-~~~~~~~~----~~-- I I am authorized to serve process in civil actions within the state or territory where the above summons was served. 2. My official title is of County. (state). 3. I have served the above summons by: (check one) J<J delivering a copy of the summons and a copy of the petition to the Defendant/Respondent. o leaving a copy of the summons and a copy of the petition at the dwelling place or usual abode of the Defendant/Respondent With, a person of the Defendant's/Respondent's family over the age of 15 years. (for service on a corporation) delivering a copy of the summons and a copy of the petition to (name) (title). Signature of Sheriff or Server (Seal) Subscribed and-swum To me before this (day) (month) (year) I am: (check one) 0 the clerk of the court of which affiant is an officer. o the judge of the court of which affiant is an officer. o authorized to administer oaths in the state in which the affiant served the above summons. (use for out-of-state officer) o authorized to administer oaths. (use for court-appointed server) Service Fees, if applicable Summons $ _ Non Est $ _ Mileage $ Total $ _ ~ $ ~~_ per mile) Siznature and Title See the follow; fo r- directions to clerk and to officer rna return on service of summons. EXHIBIT!J /I OSCA (7-04) SM60 For Court Use Only Duc urne nt Hja 08-SMOS-(!l4 I of 2 (OBI6-CV04217) Ruks 54.06,54.07,54.14,5420; RSMo

8 ( Directions to Clerk Personal service outside the State of Missouri is permitted only upon certain conditions set forth in Rule 54. The clerk insert in the summons the names of only the DefendantfRespondent or Defendants/Respondents who are to be liy served by the officer to whom the summons is delivered. The summons should be signed by the clerk or deputy clerk under the seal of the court and a copy of the summons and a copy of the petition for each DefendantfRespondent should be mailed along with the original summons to the officer who is to make service. The copy of the summons may be a carbon orother copy and should be signed and sealed in the same manner as the original but it is unnecessary to certify that the copy is a true copy. The copy of the motion may be a carbon or other copy and should be securely attached to the copy of the summons but need not be certified a true copy. If the Plaintiff's/Petitioner has no attorney, the Plaintiff's/Petitioner's address and telephone number should be stated in the appropriate square on the summons. This form is not for use in attachment actions. (Sec Rule 54.06, and 54.14) Directions to Officer Making Return on Service of Summons A copy of the summons and a copy of the motion must be served on each Defendant/Respondent. If any DefendantfRespondent refuses to receive the copy of the summons and motion when offered, the return shall be prepared accordingly so as to show the offer of the officer to deliver the summons and motion and the Defendant's/Respondent's refusal to receive the same. Service shall be made: (J) On Individual. On an individual, including an infant or incompetent person not having a legally appointed guardian, by delivering a copy of the summons and motion to the individual personally or by leaving a copy of the summons and motion at the individual's dwelling house or usual place of abode with some person of the family over 15 years of age, or by delivering a copy of the summons and petition to an agent authorized by appointment or required by law to receive service of process; (2) On Guardian. On an infant or incompetent person who has a legally appointed guardian, by delivering a copy of the summons and motion to the guardian personally; (3) On Corporation, Partnership or Other Unincorporated Association. On a corporation, partnership or unincorporated association, by delivering a copy of the summons and motion to an officer, partner, or managing or general agent, or by leaving the copies at any business office of the DefendantfRespondent with the person having charge thereof or by delivering copies to its registered agent or to any other agent authorized by appointment or required by law to receive service of process; (4) On Public or Quasi-Public Corporation or Body. Upon a public, municipal, govenunental or quasi-public corporation or body in the case of a county, to the mayor or city clerk or city attorney in the case of a city, to the chief executive officer in the case of any public, municipal, governmental, or quasi-public corporation or body or to any person otherwise lawfully so designated. Service may be made by an officer or deputy authorized by law to serve process in civil actions within the state or territory where such service is made. Service may be made in any state or territory of the United States. ] f served in a territory, substitute the word "territory" for the word "state." The office making the service must swear an affidavit before the clerk, deputy clerk, or judge of the court of which the person is an officer or other person authorized to administer oaths. This affidavit must slate the time, place, and manner of service, the official character of the affiant, and the affiant's authority to serve process in civil actions within the state or territory where service is made. Service must not be made less than ten days nor more than 30 days from the date the Defendant/Respondent is to appear in court. The return should be made promptly and in any event so that it will reach the Missouri Court within 30 days after service. OSCA (7-04) SM60 For Court Use Only: Documenl ID# OH-SMOS J84 2 of 2 (0816-CV04217) Rules 54 06, 54.07, , J{) RS~

9 THE 16TH JUDICIAL CIRCUIT COURT, JACKSON COUNTY, MISSOURI ( Case Number: 0816-CV04217 DefendantfRespondent: NOV Nature CC Other ATION LLc of Suit: Tort VS. Plaintiff s/petitioner ' s A ttorney/ Address: SAMUEL K UP Am 297 NE BA YVIEW LEES SUMMIT. MO Court Address: 308 W Kansas INDEPENDENCE, MO Summons for Personal Service Outside the State of Missouri (Except Attachment Action) The State of Missouri to: THE PIPER JAFFRA Y COMPANIES Alias: I HALLBROOK PLACE SUITE OVERBROOK ROAD KANSAS CITY, KS COURT SEAL OF JACKSON COUNTY Further Information: I certify that: PRIV ATE PROCESS SERVER OP;GH'.j,i\L t-.a/,b:e -,.lui,,-,:, f!,.tn ON THE wnn,:" ) FO ;,,-J'I 0 DEPT C 18 You are summoned to appear before this court and to file your pleading to the petition, copy of which is attached, and to serve a copy of your pleading upon the attome for the PlaintifflPetitioner at the above address all within 30 days after service of this summons upon you, e usive 0 e day of service, I you fail to tile your pleading, judgm~ary er2u~d8be taken against yo or the relief emanded in t Date ~~_c~~~~~~~~~ Officer's or Server's Affidavit of Service I. I am authorized to serve process in civil actions within the state or territory where the above summons was served. 2. My oflicialtitle is of County,. (state). 3. I have served the above summons by: (check one) lzl delivering a copy of the summons and a copy of the petition to the Defendant/Respondent. '0 leaving a copy of the summons and a copy of the petition at the dwelling place or usual abode of the Defendant/Respondent with, a person of the Defendant'sfRespondent's family over the age of 15 years. (for service on a corporation) delivering a copy of the summons and a copy of the petition to (name) (title). :t~-h~('::~~qim ~~ ~"/7Y'cfLU (address) in~a= ~Counry,$C (state), on a- q-b ~ (date) at j: ~Q I4/it. (time). Signature of Sheriff or Server (Seal) Subscribed and Sworn To me before this (day) (month) (year) ) am: (check one) 0 the clerk of the court of which affiant is an officer. o the judge of the court of which affiant is an officer. o authorized to administer oaths in the state in which the affiant served the above summons. (usc for out-of-stale officer) o authorized 10 administer oaths. (use for court-appointed server) Service fees, if applica ble Summons $ _ Non Est $ _ Mileage $... miles@ $ ~ per mile) Total $ _ Signature and Tille See the follo\yin~ D3!!e for directions to clerk and 10 officer rna kine return Oil service of summons. OSCA (7~04) SM60 For COlin Use Only Document ID# 08.SMOS~t8J I of 2 (0816-CV042t7) Rules 5406,54.07,54.14, , RSMo

10

11

12

13

14

15

16

17

18