The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER GRANTING DCFS DEFENDANTS' MOTION TO DISMISS PURSUANT TO 12(b)(5) [Motion filed on July 17, 2009]
This matter comes before the Court on a Motion to Dismiss filed by specially appearing defendants Michelle Llorens, Jan Williams, Alison Willis, Joseph Lotta, Valere Baggio, Kristine Amin, and Victoria Colligan. All of these defendants are either current or former employees of the County of Los Angeles Department of Children and Family Services ("DCFS Defendants"). After reviewing the materials submitted by the parties and considering the arguments therein, the Court grants the Rule 12(b)(5) motion, and denies the Rule 41(b) motion as moot.
Plaintiff Brian J. Blundell ("Plaintiff") is the father of three minor children, Brandy M., Nathan B., and Connor M. Plaintiff's parental rights were terminated in state court proceedings on April 4, 2006.
On April 3, 2008, Plaintiff filed his Complaint against the County of Los Angeles; current or former employees of the County of Los Angeles Department of Children and Family Services, Michelle Llorens, Jan Williams, Alison Willis, Joseph Lotta, Valerie Baggio, Kristine Amin, and Victoria Colligan (hereinafter, "DCFS Defendants"); current or former Deputy County Counsel Richard Girgado, Erica Edelman, and Randall Harris; and Patricia Ploehn, director of DCFS. The Complaint seeks relief for: (1) violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983, for violation of Plaintiff's Fourteenth Amendment rights; (2) intentional infliction of emotional distress; and (3) Monell*fn1 liability against the County of Los Angeles for establishing and/or following policies, procedures, customs, and/or practices that were "the moving force behind the violations of [Plaintiff's] constitutional rights." (Compl. at 64.) The Court previously granted in part and denied in part a Motion to Dismiss by Defendant Los Angeles County. An order dated November 6, 2008 dismissed Plaintiff's First Cause of Action and Fourth Amendment claims against the County. (See Dkt. No. 25.)
At a scheduling conference held on February 2, 2009, Plaintiff requested extra time to serve the DCFS Defendants. Plaintiff represented to the Court that he needed to conduct discovery regarding the DCFS office location for the defendants in order to properly serve them with the summons and complaint, though Plaintiff provided no specific representations as to what he had previously done. Defense counsel objected to the request on the ground that ten months had already elapsed since the filing of the complaint -- well beyond the 120 day period provided by Federal Rule of Civil Procedure 4(m) -- but the Court granted Plaintiff's request and ordered that the last day to serve all named defendants was June 1, 2009. The Court's Scheduling Order emphasized in bold that June 1, 2009 was the last day to "SERVE ALL NAMED DEFENDANTS." (Dkt. No. 37 at 2.)
Plaintiff conducted no discovery after the scheduling conference, including with respect to the office locations for the named DCFS defendants. (Boyer Decl. ¶ 3.) Plaintiff did not request additional time from the Court to effect service beyond the June 1, 2009 deadline.
On June 10, 2009, a process server delivered to DCFS headquarters papers which consisted of seven sets of a summons and complaint in this action, with the name of one of the DCFS defendants highlighted on each. (Victor Decl. ¶ 2.) On June 18, 2009, Plaintiff submitted seven proofs of service (one for each of the DCFS Defendants) stating that each of the DCFS Defendants were served by "substituted service" pursuant to California Code of Civil Procedure by leaving a copy of the summons and complaint at the DCFS main office. (See Dkt. Nos. 47-53.)
On July 17, 2009, DCFS Defendants filed a Motion to Dismiss for Failure to Prosecute, Failure to Comply with a Court Order and Insufficient Service of Process based upon Plaintiff's (1) failure to prosecute or to comply with this Court's Order setting the June 1, 2009 deadline for service of process; (2) failure to properly serve the DCFS Defendants with the Summons and Complaint. (See Dkt. No. 58.)
Plaintiff late-filed his Opposition to Motion to Dismiss on July 29, 2009. Plaintiff's counsel explains that he did not receive the Motion until July 24, 2009. (Rasch Decl. ¶ 16.) Plaintiff argues that dismissal is inappropriate because (1) Plaintiff was not willfully dilatory and Defendants failed to provide the initial disclosures required by Federal Rule of Civil Procedure 26 by "refus[ing] to disclose the alleged business addresses where [defendants] could be served"; and (2) Defendants were properly served by substituted service pursuant to California Code of Civil Procedure 415.20(b). On July 30, 2009, DCFS Defendants filed an Objection on the grounds that Plaintiff's Opposition was not timely filed pursuant to Local Rule 7-9. (See Dkt. No. 68.) In their Objection, DCFS Defendants requested that the Court "deem plaintiff's failure to file a timely opposition consent to the granting of the motion and/or decline to consider the untimely opposition." Alternatively, DCFS Defendants requested additional time to file their Reply if the Court decided to consider Plaintiff's Opposition. The Court granted DCFS Defendants until August 6, 2009 to file their Reply memorandum. DCFS Defendants timely filed their Reply. (See Dkt. No. 70.)
The DCFS defendants move to dismiss on two grounds. First, they argue that the Complaint should be dismissed against them under Federal Rule of Civil Procedure 41(b) because Plaintiff failed to serve Defendants within the time provided by the Court's order. Second, the DCFS defendants move to quash service against them. Because the Court grants the Rule 12(b)(5) motion, the Court does not address the Rule 41(b) motion.
A. Failure to Comply with Local Rule 7-9
The Court first addresses the DCFS Defendants' objection to the late-filed Opposition. Although Plaintiff has offered no valid reason for his failure to timely file an Opposition or request other relief, the Court ...