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Ballon v. Enos

December 6, 2006


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


Presently before the court is a Motion to Dismiss filed by Best Way Disposal Co., Inc. ("defendant").*fn1 For the following reasons, the court GRANTS the defendant's motion and dismisses David Ballon's ("plaintiff") complaint without prejudice.


This case arises out of defendant's attempt to collect an outstanding debt owed to them by the plaintiff. The defendant hired an attorney, Robert W. Enos, and his firm to collect the money from the plaintiff. (Defendant's Opposition to Motion ("Opp.") at 2.) Mr. Enos sent a collection notice letter to plaintiff on August, 22, 2005, which plaintiff alleges violates state and federal statutes pertaining to debt collection practices. (Id. at 2.)

On January 12, 2006, plaintiff filed the original complaint in the instant action, (Doc. No. 1), and the Clerk of this Court issued summons for all named defendants -- Mr. Enos, The Law Offices of Robin W. Enos, Desk Name I. Tucker, and the defendant. (Doc. No. 2.) This summons bore the signature and official seal of the Clerk of this Court. (Doc. No. 2. at 2.) The summons was never returned executed as to any of the named defendants. (Defendant's Memorandum In Support of Motion ("Memo. ISO Motion") at 2.) On August 17, 2006, more than 6 months after the original complaint was filed, the court issued an Order to Show Cause for Dismissal for Want of Prosecution because of plaintiff's continued failure to serve the complaint and summons. (Doc. No. 3.)

On September 14, 2006, the plaintiff filed a "proof of service of summons" for a First Amended Complaint ("FAC") as to Mr. Enos and the defendant. (Doc. Nos. 4, 5.) In response to the plaintiff's filing, the court vacated the Order to Show Cause on September 18, 2006. The plaintiff, however, had not filed a First Amended Complaint with the court. In addition, the plaintiff served the defendant by delivering the unfiled First Amended Complaint along with an unsigned, unsealed summons to "Dela [sic] Cosper, Customer Service Representative." (Doc. No. 5; Declaration of Delia Cosper In Support of Motion ("Cosper Decla."), Exhibit 1, at 1.)

On October 12, 2006, defendant filed a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 4(m), 12(b)(4), and 12(b)(5) and a Request for Order to Show Cause Against Plaintiff For Failure to Serve Summons to the [sic] Complaint. (Doc. No. 8.) The plaintiff filed an opposition to the motion on November 6, 2006, (Doc. No. 19), and the defendant filed a reply on November 13, 2006. (Doc. No. 21.)


Legal Standard

Rule 4 of the Federal Rules of Civil Procedure prescribe the form requirements for a proper summons and the manner of proper service of the summons. Fed. R. Civ. Pro. 4. "A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Fed. R. Civ. Pro. 4." Direct Mail Specialists v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir.1988). Rule 12(b)(4) and Rule 12(b)(5) motions, while closely related and sometimes used interchangeably, challenge distinctly different elements of process.*fn2 See 5A Wright & Miller, Federal Practice and Procedure, § 1353, pp. 334-35 (3d ed. 2002).

A motion to dismiss under Fed. R. Civ. Pro. 12(b)(4) attacks the sufficiency of process, thus challenging the form of the summons itself.*fn3 Fed. R. Civ. Pro. 12(b)(4); Crane v. Battelle, 127 F.R.D. 174, 177 (S.D. Cal. 1989). A defect in the form of the summons results from "noncompliance with the provision of [Fed. R. Civ. Pro] 4(b) or any applicable provision incorporated by Rule 4(b) that deals specifically with the content of the summons." Wasson v. Riverside County, 237 F.R.D. 423, 424, (C.D. Cal. 2006) (quoting United States v. Hafner, 421 F. Supp. 2d 1220, 1223 n.3 (D.N.D.)). Most defects in the form of the summons are considered technical in nature. Crane, 127 F.R.D. at 177 (stating that Rule 12(b)(4) motions are most often brought on the theory that a summons does not contain the correct name of the defendant); see also U.S.A. Nutrasource, Inc. v. CNA Insurance Co., 140 F. Supp. 2d 1049, 1053 (N.D. Cal. 2001) (holding that improper designation in summons of the defendant as a corporation and not a service mark was technical defect not warranting dismissal). Thus, dismissal is generally not appropriate unless the moving party can establish some actual prejudice. Id.

In contrast, a Rule 12(b)(5) motion, which is based on insufficiency of the service of process, does not challenge the form of the summons, but the service of the summons on the defendants.*fn4 Fed. R. Civ. Pro. 12(b)(5). A Rule 12(b)(5) motion is the proper vehicle for challenging the lack of delivery or the failure to comply with the provisions of Rule 4(d)-(m), which outline various requirements of service. Wasson, 237 F.R.D. at 424. The failure to properly serve defendants grants the court broad discretion to dismiss an action pursuant to Rule 12(b)(5) or quash service of process in the alternative. Stevens v. Security Pacific National Bank, 538 F.2d 1387, 1389 (9th Cir. 1976); English v. Krubsack, 371 F. Supp. 2d 1198, 1201 (E.D. Cal. 2005) (citing Reynolds v. United States, 782 F.2d 837, 838 (9th Cir. 1986)). "Where the validity of service is contested, the burden is on the party claiming proper service has been effected to establish the validity of service." Cranford v. United States, 359 F. Supp. 2d 981, 984 (E.D. Cal. 2005).

Analysis Dismissal for Insufficiency of Process

Defendant first challenges the sufficiency of process for the FAC under Rule 12(b)(4). (Memo. ISO Motion at 3-6.) Although the plaintiff filed a proof of service on September 14, 2006, (Doc. No. 5), defendant argues that the action should be dismissed because the plaintiff served a FAC that was never filed with the court and a summons that was unsigned and failed to bear the seal of the clerk of the court. (Memo. ISO Motion at 3; Cosper Decla, Exhibit 1, pg. 1.) Defendant argues that these defects are significant enough to warrant ...

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