Giles v. San Joaquin Valley Rehabilitation Hospital ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL D. GILES, No. 1:21-cv-00732-JLT-SKO (PS) 12 Plaintiff, ORDER GRANTING MOTION TO DISMISS IN PART 13 v. (Doc. 7) 14 SAN JOAQUIN VALLEY REHABILITATION HOSPITAL, et al., 15 Defendants. 16 17 Plaintiff Michael D. Giles filed a complaint against his former employer and several of its 18 employees on May 6, 2021, alleging civil-rights violations. (Doc. 1.) Defendants San Joaquin 19 Valley Rehabilitation Hospital, Vibra Healthcare, Mary Jo Jacobson, Connie Pierce and Kelly 20 Rudolph filed a motion to dismiss on July 1, 2021 (Doc. 7), arguing that Plaintiff failed to 21 effectuate service of process and that Plaintiff failed to state a claim. The Court GRANTS 22 Defendants’ motion to dismiss IN PART and QUASHES Plaintiff’s service of process. 23 BACKGROUND 24 Briefly, Plaintiff’s complaint alleges that he is a 60-year-old man who was discriminated 25 against because of his age and gender and that he suffered retaliation. (Doc. 1.) The Clerk of the 26 Court issued summons on May 25, 2021. (Doc. 3.) On June 15, 2021, Plaintiff filed two 27 certificates of service, indicating that on June 3, 2021, he mailed the summons to Defendant 28 Vibra Healthcare at one address and to all other Defendants at a different address. (Docs. 5 & 6.) 1 Both certificates were signed by Plaintiff. 2 LEGAL STANDARDS 3 “Rule 12(b)(4) enables the defendant to attack the form of the proof of service, and Rule 4 12(b)(5) enables the defendant to attack the manner in which service was attempted.” Justice v. 5 Albertsons Corp., No. 11-CV-2253-H BLM, 2012 WL 355031, at *3 (S.D. Cal. Feb. 2, 2012) 6 (unpublished); accord Crane v. Battelle, 127 F.R.D. 174, 177 (S.D. Cal. 1989) (distinguishing 7 between Rule 12(b)(4) and 12(b)(5) motions). 8 If service is insufficient, as defined by Federal Rule of Civil Procedure 4, “the district 9 court has discretion to dismiss an action or to quash service.” S.J. v. Issaquah Sch. Dist. No. 411, 10 470 F.3d 1288, 1293 (9th Cir. 2006). “Once service is challenged, plaintiffs bear the burden of 11 establishing that service was valid under Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th 12 Cir. 2004). “Rule 4 is a flexible rule that should be liberally construed to uphold service so long 13 as a party receives sufficient notice of the complaint.” Chan v. Society Expeditions, 39 F.3d 1398, 14 1404 (9th Cir. 1994). However, “[n]either actual notice, nor simply naming the person in the 15 caption of the complaint, will subject defendants to personal jurisdiction if service was not made 16 in substantial compliance with Rule 4.” Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 17 1982) (internal citations omitted). 18 Rule 4(c) describes what must be served and who may serve it. “A summons must be 19 served with a copy of the complaint.” Fed. R. Civ. P. 4(c)(1). “Any person who is at least 18 20 years old and not a party may serve a summons and complaint.” Fed. R. Civ. P. 4(c)(2), 21 emphasis added. Rules 4(e) and (h) govern the way to serve process on individuals and 22 corporations in the United States: 23 (e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual--other 24 than a minor, an incompetent person, or a person whose waiver has been filed--may be served in a judicial district of the United States 25 by: 26 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the 27 district court is located or where service is made; or 28 (2) doing any of the following: 1 (A) delivering a copy of the summons and of the complaint to the individual personally; 2 (B) leaving a copy of each at the individual’s dwelling 3 or usual place of abode with someone of suitable age and discretion who resides there; or 4 (C) delivering a copy of each to an agent authorized 5 by appointment or by law to receive service of process. 6 … 7 (h) Serving a Corporation, Partnership, or Association. Unless 8 federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other 9 unincorporated association that is subject to suit under a common name, must be served: 10 (1) in a judicial district of the United States: 11 (A) in the manner prescribed by Rule 4(e)(1) for 12 serving an individual; or 13 (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, 14 or any other agent authorized by appointment or by law to receive service of process and--if the agent is 15 one authorized by statute and the statute so requires-- by also mailing a copy of each to the defendant; or 16 (2) at a place not within any judicial district of the United 17 States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i). 18 19 Fed. R. Civ. P. 4. Rule 4(d)(1) also describes one way a defendant may waive service of process. 20 The Eastern District of California has a copy of the form referred to by the Rule here: 21 https://www.caed.uscourts.gov/caed/documents/forms/civil/waiver%20of%20service.pdf. 22 DISCUSSION 23 Defendants move to dismiss or to quash service due to insufficient service of process 24 because Plaintiff failed to provide a copy of the complaint when serving summons. (Doc. 7 at 7– 25 8.) Plaintiff does not dispute that he failed to include a copy of the complaint and represents that 26 he sent a copy of the complaint after becoming aware of the requirement. (Doc. 10 at 2.) 27 However, Plaintiff has not filed a statement to that effect as required by Rule 4(l)(1). 28 Accordingly, Plaintiff has not met his burden to establish that he accomplished lawful service of 1 | process. See Brockmeyer, 383 F.3d at 801 (plaintiff bears burden to prove service). 2 Because Plaintiff is pro se and indicates he now understands why his attempt at service 3 | was insufficient, the Court elects to quash service, not dismiss the complaint, and the Court will 4 | extend Plaintiffs deadline for serving process. See S.J., 470 F.3d at 1293 (court has broad 5 | discretion to quash service or dismiss complaint). Within 60 days of the date of service of this 6 | order, Plaintiff shall file either (1) proof of accomplishing service of process or (2) Defendants’ 7 | waiver of service of process. See Fed. R. Civ. P. 44m) (“If the plaintiff shows good cause for 8 | the failure [to conduct service within 90 days], the court must extend the time for service for an 9 || appropriate period.”).” Because the Court is quashing service, it need not address the remainder of 10 || the motion to dismiss. 11 CONCLUSION AND ORDER 12 Accordingly, 13 1. Defendants’ motion to dismiss is granted, in part, as set forth above. 14 2. Plaintiff's service on Defendants is quashed; and 15 3. Plaintiff shall file a proof of service or a waiver thereof within 60 days of the date of 16 service of this order. 17 18 IT IS SO ORDERED. 19 | Dated: _Sanuary 26, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 | | For example, the plaintiff may not serve the summonses and complaints. Fed. R. Civ. P. 4(c)(2). 28 □ It is possible that Plaintiff Ss service Was improper for more reasons than Defendants described in their motion. Plaintiff should carefully review Rule 4 to determine how to accomplish service.