Oels et al v. Dunleavy et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
THOMAS W. OELS, et al.,
Plaintiffs,
v.
MICHAEL J. DUNLEAVY, in his official
capacity as Governor, et al.,
Defendants.
Case No. 3:23-cv-00006-SLG
ORDER RE EMERGENCY MOTION FOR SUPPLEMENTAL SERVICE
At Docket 15, the Court stayed its Initial Scheduling & Planning Conference
Report at Docket 12 because not all Defendants had appeared. In the order, the
Court notified Plaintiffs that they must comply with the service requirements set out
in Rule 4 of the Federal Rules of Civil Procedure.1
1. Defendants Gail Fenumiai and Kevin Meyer
On April 3, 2023, Plaintiffs filed a motion titled “Plaintiffs’ Emergency Motion
for Supplemental Service” at Docket 20. Plaintiffs request that the Court “issue a
supplemental ‘Summons in a Civil Action’ for Defendants, Gail Fenumiai, and
Kevin Meyer, to their home address to facilitate service of the summons and copy
1 Docket 15 at 4.
Case 3:23-cv-00006-SLG Document 21 Filed 04/06/23 Page 1 of 6

Case No. 3:23-cv-00006-SLG, Oels, et al. v. Gov. Michael J. Dunleavy, et al.
Order Re Emergency Motion for Supplemental Service
Page 2 of 6
of the complaint document, as both individuals are no longer employed by the
State of Alaska.”2
Plaintiffs’ Complaint names Gail Fenumiai and Kevin Meyer in their official
capacities as state officials.3 Even though Plaintiffs named these officials as
defendants, “a suit against a state official in his or her official capacity is not a suit
against the official but rather is a suit against the official’s office.”4
“[A]s a practical matter, a public official who is a defendant in a suit
seeking an injunction is not ‘on trial’ at all. The suit seeks relief against
him in his official capacity . . . If he leaves office during the interim, he
leaves the case behind and his successor becomes the party.”5
Because Plaintiffs have brought this action against Defendants Gail
Fenumiai and Kevin Meyer in their official capacities and these individuals no
longer hold their state official positions, these defendants are no longer part of this
lawsuit and their successors in office have become the appropriate parties.
Under Federal Rule of Civil Procedure 25(d), a successor in office is
automatically substituted as a party and the case should proceed in the substituted
party’s name.6 In this case, the current Director of Elections is Carol Beecher,
2 Docket 20 at 2.
3 See Docket 1 at 5.
4 Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989).
5 Scott v. Lacy, 811 F.2d 1153, 1153–54 (7th Cir. 1987).
6 Fed. R. Civ. P. 25(d) states:
An action does not abate when a public officer who is a party in an official capacity
dies, resigns, or otherwise ceases to hold office while the action is pending. The
officer’s successor is automatically substituted as a party. Later proceedings
Case 3:23-cv-00006-SLG Document 21 Filed 04/06/23 Page 2 of 6

Case No. 3:23-cv-00006-SLG, Oels, et al. v. Gov. Michael J. Dunleavy, et al.
Order Re Emergency Motion for Supplemental Service
Page 3 of 6
located at the Division of Elections office in Juneau, Alaska.7 The current
Lieutenant Governor is Nancy Dahlstrom, located at the Office of the Lieutenant
Governor in Juneau, Alaska.8 Also, under Federal Rule of Civil Procedure 25(d),
the Court may order substitution at any time, but even in the absence of an order,
the substitution is automatic.9 Therefore, Defendants Gail Fenumiai and Kevin
Meyer are no longer parties to this case and should not be served with this lawsuit.
For these reasons, Plaintiffs’ request for an order issuing a “supplemental
‘Summons in a Civil Action’” for Defendants Gail Fenumiai and Kevin Meyer to be
served at home is DENIED. The Clerk of the Court will substitute Defendant Gail
Fenumiai with Carol Beecher, Director, Division of Elections and Defendant Kevin
Meyer with Nancy Dahlstrom, Lieutenant Governor, and amend the case caption
to reflect the automatic substitution.
2. Rule 4(c)(3)
Plaintiffs also request that the Court order service by the United States
Marshal Service pursuant to Federal Rule of Civil Procedure 4(c) because
Defendants refused service on Michael Dunleavy, Gail Fenumiai, and Kevin
should be in the substituted party’s name, but any misnomer not affecting the
parties’ substantial rights must be disregarded. The court may order substitution
at any time, but the absence of such an order does not affect the substitution.
7See https://www.elections.alaska.gov/contact-information.
8 See https://ltgov.alaska.gov/contact.
9 Fed. R. Civ. P. 25(d).
Case 3:23-cv-00006-SLG Document 21 Filed 04/06/23 Page 3 of 6

Case No. 3:23-cv-00006-SLG, Oels, et al. v. Gov. Michael J. Dunleavy, et al.
Order Re Emergency Motion for Supplemental Service
Page 4 of 6
Meyer, by certified mail/restricted delivery, in care of the State of Alaska,
Department of Law in Anchorage, Alaska.10
Federal Rule of Civil Procedure 4(c)(3) provides in relevant part:
“At the plaintiff’s request, the court may order that service be made by
a United States marshal or deputy marshal or by a person specially
appointed by the court.”
When a plaintiff is neither in forma pauperis nor a seaman, the Court’s
authority to order service by the marshals “is discretionary and should be exercised
in favor of appointment when a law enforcement presence appears necessary or
advisable to keep the peace.”11 Moreover, a plaintiff’s 4(c)(3) application “must
provide a factual basis for why a court order is necessary to accomplish service.”12
Here, the Court’s authority to order the United States Marshal Service to
serve civil process is discretionary and there is no apparent necessity for a law
enforcement presence. Moreover, Plaintiffs have not presented the Court with an
adequate basis for exercising its discretion to provide service by the United States
Marshal Service under Federal Rule of Civil Procedure 4(c)(3). Therefore,
Plaintiffs’ request to order service on state officials by the United States Marshal
10 Docket 20-3 at 2–4.
11 Volpe v. JP Morgan Chase Bank, Case No. 8:22-cv-01054-JWH-DFM, 2022 WL 3643754, at
*1 (C.D. Cal. June 21, 2022), quoting Hollywood v. Carrows California Fam. Restaurants, Case
No. CV 18-2098-JGB (GJS), 2018 WL 7461690, at *1 (C.D. Cal. Apr. 26, 2018) (quotations and
citations omitted).
12 Hollywood v. Carrows California Fam. Restaurants, 2018 WL 7461690, at *1 (quotations and
citations omitted).
Case 3:23-cv-00006-SLG Document 21 Filed 04/06/23 Page 4 of 6

Case No. 3:23-cv-00006-SLG, Oels, et al. v. Gov. Michael J. Dunleavy, et al.
Order Re Emergency Motion for Supplemental Service
Page 5 of 6
Service is DENIED.
3. Rule 4(m) Deadline
As of the date of this Order, proof of service has not yet been received for
all Defendants.13 However, Plaintiffs have shown diligence in attempting to
effectuate service.14 Therefore, Plaintiffs’ deadline for filing proof of service for
Defendants Carol Beecher and Nancy Dahlstrom, in their official capacities, is
extended until May 15, 2023 (30 days after the Rule 4(m) deadline of April 13,
2023).15 The Clerk of the Court will issue new summons for Defendants Carol
Beecher and Nancy Dahlstrom, in their official capacities.
As the State “chief executive officer”16, Michael Dunleavy, in his official
capacity as governor, must be served by personal service, not by certified mail.17
13 Docket 20-3 at 1–4.
14 See Dockets 13, 20. Fed. R. Civ. P. 4(m) provides that “if the plaintiff shows good cause for the
failure [to timely serve the defendants], the court must extend the time for service for an
appropriate period.” See also McWashington v. Alaska Airlines, Inc., Case No. 3:17-cv-00204-
TMB, 2019 WL 13253353, at *4 (D. Alaska Apr. 30, 2019) (“If there is no good cause for the delay,
a court has discretion to dismiss without prejudice or to extend the time period.”), quoting Cho v.
UCBH Holdings, Inc., 890 F. Supp. 2d 1190, 1198 (N.D. Cal. 2012).
15 Plaintiffs filed their Complaint on January 13, 2023. Docket 1.
16 “The executive power of the State is vested in the governor.” ALASKA CONST. art. III, § 1
(1959).
17 Fed. R. Civ. P. 4(j)(2)(A). “Delivery” to chief executive officer of a state has been interpreted to
mean personal service, not certified mail. See Wright & Miller, Federal Practice and Procedure:
Civil 2d § 1109 n. 7 (4th ed.) (collecting cases). See also Fed. R. Civ. P. 4(j)(2)(B); Alaska R. Civ.
4(d)(7), (8).
Case 3:23-cv-00006-SLG Document 21 Filed 04/06/23 Page 5 of 6

Case No. 3:23-cv-00006-SLG, Oels, et al. v. Gov. Michael J. Dunleavy, et al.
Order Re Emergency Motion for Supplemental Service
Page 6 of 6
Plaintiffs should also personally serve a copy the complaint and summons on Carol
Beecher and Nancy Dahlstrom in their official capacities.18
IT IS THEREFORE ORDERED:
1. Plaintiffs’ Motion at Docket 20 is DENIED.
2. The Clerk of the Court is directed to substitute Defendant Gail Fenumiai with
“Carol Beecher, Director, Division of Elections, in her official capacity” and
Defendant Kevin Meyer with “Nancy Dahlstrom, Lieutenant Governor, in her
official capacity” and amend the case caption to reflect the automatic
substitution.
3. The Clerk of the Court is directed to issue new summons for Defendants
Carol Beecher and Nancy Dahlstrom, in their official capacities.
4. Plaintiffs must provide the Court with proof of service for Defendants Michael
Dunleavy, Carol Beecher, and Nancy Dahlstrom, in their official capacities,
on or before May 15, 2023 or the Complaint as to these defendants may be
dismissed.
DATED this 6th day of April, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
18 See Alaska R. Civ. 4(d)(7), (8); State, Dept. of Corrections v. Kila, 884 P.2d 661, 662 (Alaska
1994).
Case 3:23-cv-00006-SLG Document 21 Filed 04/06/23 Page 6 of 6