Pimental v. Rivera ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 CESAR PIMENTEL, 9 Plaintiff, Case No. 1:19-cv-01088-AWI-SKO 10 v. ORDER GRANTING DEFENDANTS’ MOTION TO QUASH SERVICE 11 HANFORD POLICE OFFICERS ALFRED RIVERA and MARK CARRILLO, ORDER CONTINUING SCHEDULING 12 CONFERENCE Defendants. 13 (Doc. 14) _____________________________________/ 14 I. INTRODUCTION 15 On August 9, 2019, Plaintiff, proceeding in forma pauperis, filed this case against 16 Defendants pursuant to 42 U.S.C. § 1983. (Doc. 1.) The Court found Plaintiff’s complaint stated 17 18 a cognizable claim for failure to provide medical assistance, (see Docs. 4, 5, 6), and directed 19 service of the complaint by the United States Marshal, (Docs. 7, 9). On October 25, 2019, proof 20 of service was filed on the docket. (Doc. 10.) 21 Defendants filed a motion to quash service on December 30, 2019. (Doc. 14.) Plaintiff 22 filed an opposition on January 10, 2020. (Doc. 15.) For the reasons stated below, Defendants’ 23 motion is granted, and service is quashed. 24 II. DISCUSSION 25 26 A. Legal Standards 27 Rule 4 of the Federal Rules of Civil Procedure provides that proper service can be made on 28 1 2 with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to 3 an agent authorized by appointment or by law to receive service of process. Fed. R. Civ. P. 4(e)(2). 4 Proper service can also be made pursuant to the applicable law of the state in which the case was 5 filed or in which service is effected. See Fed. R. Civ. P. 4(e)(1). 6 Under California law, service may be made on an individual defendant by personally 7 delivering a copy of the summons and complaint to the defendant or by substitute service under Cal. 8 Civ. Code. § 415, which states, in relevant part: 9 10 If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . a summons may be served by 11 leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address . . . in the presence 12 of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address . . . at least 18 years of age, 13 who shall be informed of the contents thereof, and by thereafter mailing a copy of 14 the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. 15 Cal. Civ. Code § 415.20. 16 When service is challenged, the plaintiff bears the burden of establishing that service was 17 valid under Rule 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). “Normally the process 18 19 server’s return will provide a prima facie case as to the facts of service, but if the defendant 20 introduces uncontroverted affidavits in support of a motion to quash service, the content of those 21 affidavits will be deemed admitted for purposes of the motion.” O’Dell v. Inyo County Sheriff’s 22 Dep., No. CV-F-06-658 OWW/SMS, 2006 WL 3834397, at *2 (E.D. Cal. Dec. 26, 2006) (quoting 23 Wright & Miller, Federal Practice and Procedure: Civil 3rd § 1353, pp. 343-344). 24 “Rule 4 is a flexible rule that should be liberally construed so long as a party receives 25 sufficient notice of the complaint.” United Food & Commercial Workers Union v. Alpha Beta Co., 26 27 736 F.2d 1371, 1382 (9th Cir. 1984). However, there still must be “substantial compliance” with 28 Rule 4, otherwise, “neither actual notice nor simply naming the defendant in the complaint will 1 2 Inc., 840 F.2d 685, 688 (9th Cir. 1988) (citation omitted). If service was insufficient, the Court may 3 either dismiss the action or retain the action and quash service of process. Stevens v. Sec. Pac. Nat’l 4 Bank, 538 F.2d 1387, 1389 (9th Cir. 1976). 5 B. Analysis 6 Here, the return of service states that on October 25, 2019, service was effected on 7 Defendants at the Hanford Police Department, 425 N. Irwin Street, Hanford, California 93230, by 8 delivering a copy of the summons and complaint to “A. Carrillo, Records Assistant,” who “accepted 9 10 service” on behalf of Defendants. (See Doc. 10.) There is no indication that personal service on 11 Defendants was attempted or that the summons and complaint were mailed to Defendant’s place of 12 business. Defendants’ motion attaches declarations stating that Defendants were not personally 13 served and did not receive copies of the summons or the complaint in the mail. (Docs. 14-2, 14-3.) 14 The Court finds that service was not properly effected under Rule 4(e) or under California 15 law, and therefore service must be quashed. As to substitute service under Rule 4, although the 16 return of service states that “A. Carillo” accepted service on behalf of Defendants, this is insufficient 17 18 to show that A. Carrillo was “authorized by appointment or by law” to receive service of process 19 for Defendants. See Fed. R. Civ. P. 4(e)(2)(C); see also, e.g., United States v. Marple Community 20 Record, Inc., 335 F. Supp. 95, 102 (E.D. Pa. 1971) (“Obviously, something more than mere 21 acceptance must be shown to demonstrate an agency relationship for this specific purpose [of 22 accepting service]”); 2 Moore’s Federal Practice ¶ 4.10[4], at 4-176 (“The agent’s acceptance of 23 service, or his own statement as to his authority, is insufficient, standing alone, to establish 24 25 authorization to receive process.”). In sum, the Court cannot find that Defendants explicitly 26 appointed A. Carrillo to accept service, or impliedly appointed her “from the circumstances 27 surrounding the service upon the agent.” See 4A Charles A. Wright & Arthur R. Miller, Federal 28 1 2 served by leaving copies of the summons and complaint with an administrative assistant at the police 3 department). 4 As to substitute service under California law, the return of service reflects that copies of the 5 summons and the complaint were left at Defendants’ place of business, but there is no indication 6 that personal service was attempted first, and there is no indication that the summons and complaint 7 were also mailed by first-class mail to Defendants’ place of business. (See Doc. 10.) Thus, service 8 was similarly ineffective under Cal. Civ. Code § 415.20. Accordingly, the Court finds that service 9 10 must be quashed. In its discretion, the Court will retain jurisdiction, quash service and direct the 11 United States Marshal to re-serve Defendants. See Stevens, 538 F.2d at 1389. 12 III. CONCLUSION AND ORDER 13 Accordingly, IT IS HEREBY ORDERED: 14 1. Defendants’ motion to quash service, (Doc. 14), is GRANTED, and service is 15 QUASHED. 16 2. The Court will direct the United States Marshal Service to re-serve Defendants by 17 18 separate order. 19 3. The mandatory scheduling conference currently set for January 23, 2020, is 20 CONTINUED to April 16, 2020 at 10:15 a.m. 21 22 IT IS SO ORDERED. 23 Sheila K. Oberto 24 Dated: January 14, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 25 26 27 28