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Alfred Banks v. Education Corp.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 13, 2011

ALFRED BANKS,
PLAINTIFF,
v.
EDUCATION CORP., ET AL., JEFFERSON CAPITAL SYSTEMS, LLC; DEFENDANTS.

The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER GRANTING MOTION TO QUASH; DISMISSING PLAINTIFF'S COMPLAINT AS TO DEFENDANT ACS AND DENYING MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

[Doc. No. 168 and 175]

The Defendant, Jefferson Capital Systems, LLC (hereinafter "Jefferson Capital") filed a motion to quash pursuant to Federal Rules of Civil Procedure Rule 12(b)(4) and 12(b)(5). The Plaintiff filed an opposition, Doc. No. 173, and the Defendant filed a Reply, Doc. No. 171. The hearing on Defendant's motion, set for July 15, 2011 at 1:30 p.m. before Judge Battaglia, is hereby vacated as this motion is appropriate for submission on the papers without oral argument pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, the Defendant's motion to quash is hereby GRANTED and the Plaintiff's claims as to Jefferson Capital set forth in the First Amended Complaint, Doc. No. 88, are hereby DISMISSED WITHOUT PREJUDICE and with LEAVE TO AMEND.

Background

On September 10, 2010, the Plaintiff filed a Complaint alleging violations of his civil rights. [Doc. No. 1]. On February 15, 2011, Plaintiff filed his First Amended Complaint ("FAC") alleging violations of the Fair Credit Reporting Act as well as a RICO claim. [Doc. No. 88]. On March 2, 2011, the Court ordered Plaintiff to effectuate proper service on any defendant not previously served within 60 days [Doc. No. 100]. On May 24, 2011, the Court issued an Order to Show Cause to the Plaintiff to appear on June 7, 2011 before Judge Battaglia and show cause as to why the Court should not dismiss his case against any Defendant not properly served in accordance with Rule 4 of the Federal Rules of Civil Procedure and the Court's March 2, 2011 Order. At the hearing, the Plaintiff failed to demonstrate that he had effectuated proper service with regard to several Defendants and the Court dismissed those Defendants without prejudice for want of prosecution. [Doc. No. 167].

Discussion

In the instant motion, Jefferson Capital moves to quash pursuant to Federal Rules of Civil Procedure Rule 12(b)(4) and 12(b)(5) on the grounds that Plaintiff's service of process is defective because: 1) the Plaintiff never served Defendant with the Summons and Complaint in this matter (either with respect to the original complaint, or the First Amended Complaint); and 2) the Plaintiff has not filed a proof of service as to this Defendant. While the Plaintiff contends that he has had conversations with Defendant regarding Defendant's need for additional time to respond to the FAC and the possible settlement of this case, the Plaintiff has not demonstrated that he has in fact properly served this Defendant and has failed to file proof of service.

As the Court explained to the Plaintiff at the hearing on the Order to Show Cause, this Court cannot exercise jurisdiction over a defendant without proper service of process pursuant to Rule 4. The Defendant has now challenged Plaintiff's service of process on two grounds, the first attacking the form of the proof of service and the second challenging the manner in which service was attempted. (Fed. R. Civ. P. 12(b)(4) and 12(b)(5). Once service is challenged, the Plaintiff bears the burden of establishing that service was valid under FRCP 4.*fn1 Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir.2004) (citing Butcher's Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 538 (9th Cir.1986)). If the Plaintiff is unable to satisfy his burden, the Court has discretion to either dismiss the action or retain the action and quash the service of process. See Stevens v. Sec. Pac. Nat'l Bank, 538 F.2d 1387, 1389 (9th Cir.1976).

From the record and moving papers, its appears uncontested that the Plaintiff mailed the complaint to Defendant, but did not include the required notice or acknowledgment of service. See Declaration of Claressa Duberry Declaration, ¶ 2. The complaint was sent to Jefferson by mail, but did not include the required notice or acknowledgment of service. Duberry Declaration, ¶ 2. While regular first class mail would be sufficient service under Minnesota law,*fn2 and by proxy, under Federal Rule of Civil Procedure 4(h)(1)(A) if the Defendant is provided two copies of a notice and acknowledgment and sends an acknowledgment of service to Plaintiff within twenty days, this did not occur. As such, the Plaintiff's attempted service is insufficient as a matter of law, and the service of the summons must be quashed. Based upon the foregoing and in light of this Court's March 2, 2011 Order, the Plaintiff's claims as to Defendant Jefferson Capital are hereby DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND.

Since the Plaintiff has now been warned twice by this Court regarding his failure to properly serve Defendants, the Plaintiff shall have 30 days from the date of this Order to file and serve a Second Amended Complaint. The Plaintiff is warned that any further failure to comply with Rule 4 and effectuate proper service on any of the Defendants previously dismissed on these grounds will result in the Plaintiff's claims against these Defendants being DISMISSED WITH PREJUDICE without further motion by Defendants. In light of the foregoing the Plaintiff's motion for leave to file Second Amended Complaint, [Doc. No. 175], is DENIED.

IT IS SO ORDERED.


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