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Fred Kenneth Macdonald v. United States Department of Homeland Security; Kent

August 23, 2011

FRED KENNETH MACDONALD,
PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; KENT D. HAROLDSEN;
JOHN GARZON; ROBIN BAKER; ED HUGHS; AND DOES 1-100, DEFENDANTS.



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

ORDER DENYING INDIVIDUAL DEFENDANTS' MOTION TO UNITED STATES OF AMERICA; DISMISS [Doc. No. 6]

Presently before the Court is Defendants Kent D. Haroldsen, John Garzon, Robin Baker, and Ed Hughs's motion to dismiss. This motion is suitable for disposition without oral argument pursuant to Local Civil Rule 7.1(d)(1). For the reasons stated below, the Court DENIES Defendants' motion.

BACKGROUND

Plaintiff Fred MacDonald alleges that United States immigration authorities unlawfully detained him, removed him from the United States, and denied him permission to re-enter the U.S. for one year. At the time of his removal, MacDonald claims he was in the U.S. under an "S13" classification status, meaning he is a Canadian-born Native American and thus could not lawfully be removed from or denied entry into the United States.

On May 16, 2011, MacDonald filed his initial complaint in state court, alleging two Bivens claims against individual defendants Kent D. Haroldsen, John Garzon, Robin Baker, and Ed Hughs, all employees of the U.S. Department of Homeland Security ("DHS"), and one claim alleging a violation of 18 U.S.C. § 4001(a), against DHS and the individual defendants. On May 18, 2011, DHS removed the action to this Court. On June 8, 2011, MacDonald filed an amended complaint, adding the United States as a defendant and adding additional claims. [Doc. No. 4.]

The individual defendants now move to dismiss MacDonald's claims against them because he has thus far failed to perfect service of process on them as required under Federal Rule of Civil Procedure 4(i).

LEGAL STANDARD

"A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Fed. R. Civ. P. 4." Direct Mail Specialists, Inc. v. Eclat Computerized Techs., , 840 F.2d 685, 688 (9th Cir. 1988) (citing Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982)). "Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint." United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984). "Nonetheless, without substantial compliance with Rule 4 'neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction.'" Direct Mail, 840 F.2d at 688 (quoting Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986)).

"To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf . . . a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g)." Fed. R. Civ. P. 4(i)(3). To serve the United States, a plaintiff must:

(A) [either]

(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought-or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk-or

(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;

(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and

(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or ...


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