Do v. Tri City Healthcare District ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 SOUTHERN DISTRICT OF CALIFORNIA 9 MIKE DO, CASE NO. 19cv2253-LAB (MSB) 10 Plaintiff, ORDER 11 vs. 12 TRI CITY HEALTHCARE DISTRICT, et al. 13 Defendants. 1 14 5 Defendants filed a motion to dismiss the First Amended Complaint in this action 16 under Fed. R. Civ. P. 12(b)(4), (5), and (6), contending that plaintiff Mike Do failed to 17 serve them properly with the summons and original complaint and that certain claims in 18 the First Amended Complaint fail to state a claim on which relief can be granted. Dkt. No. 19 4-1. Defendants’ motion is GRANTED IN PART. 20 I. Dismissal for Failure to State a Claim 21 Defendants’ motion seeks dismissal under Fed. R. Civ. P. 12(b)(6) of Do’s claims 22 for negligence, intentional infliction of emotional distress against all Defendants and for 23 violation of Title VII against Defendants Mark Albright and Steve Dietlin. Of those, Do 24 opposes only the dismissal of the claim for intentional infliction of emotional distress 25 against Albright. Dkt. 9 p. 10. Defendants’ reply withdraws the Rule 12(b)(6) motion as to 26 that claim. Dkt. 10 p. 2. 27 The Court therefore DISMISSES the following claims with prejudice: 28 1. Do’s first claim for relief, for hostile work environment, against Albright and 1 Dietlin; 2 2. Do’s second claim for relief, for retaliation, against Albright and Dietlin; 3 3. Do’s third claim for relief, for wrongful termination, against Albright and Dietlin; 4 4. Do’s fourth claim for relief, for negligence, against all Defendants; and 5 5. Do’s fifth claim for relief, for intentional infliction of emotional distress, against 6 Dietlin and Tri City. 7 ll. Failure to Serve the Summons and Complaint 8 Defendants’ motion also seeks dismissal because Mr. Do did not serve Defendants 9 || with the summons and original complaint in accordance with Fed. R. Civ. P. 4. 10 || Defendants’ reply withdraws that request. Dkt. 10 p. 2. 11 Nevertheless, the parties and Court agree that Mr. Do has yet to properly serve 12 || Defendants. If a defendant is not served within 90 days after the complaint is filed, the 13 || court has discretion to order that service be made within a specified time. Fed. R. Civ. P. 14 || 4(m); see also In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001) (Rule 4(m) gives courts 15 || discretion to extend time for service even in absence of good cause). 16 The Court therefore ORDERS Mr. Do to serve Defendants or obtain a waiver of 17 || service in accordance with Rule 4 within fourteen (14) days of this order. Absent a waiver, 18 || Mr. Do must serve a Summons correcting the deficiency identified in Defendants’ briefing 19 || and the original complaint. 20 The Court further ORDERS that, no later than twenty-one (21) days after entry of 21 || this order, Mr. Do must file an amended pleading omitting the claims dismissed by this 22 || order. Counsel should confer prior to filing the amended pleading to avoid further 23 || unnecessary briefing to the extent possible. 24 25 || Dated: July 1, 2020 (tm / A (by WY 26 HONORABLE LARRY ALAN BURNS Chief United States District Judge 28