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Sam Tavake, et al v. Allied Insurance Company

April 3, 2012

SAM TAVAKE, ET AL., PLAINTIFFS,
v.
ALLIED INSURANCE COMPANY, ET AL.,
DEFENDANTS.



ORDER

This matter came before the court on March 23, 2012, for hearing of defendants' motions to dismiss the complaint filed by plaintiffs Sam Tavake and Tami Tavake, who are proceeding pro se. (Doc. Nos. 13 & 18.) Attorney Alex F. Pevzner appeared on behalf of defendants Inderjit S. Toor Construction, Inc., and Harinder Toor. Attorney John T. Burnite appeared on behalf of defendants Jeff Mangili and James Andrew Aspegren. Plaintiffs Sam Tavake and Tami Tavake appeared on their own behalf. Oral argument was heard, and defendants' motions were taken under submission.

For the reasons set forth below, upon consideration of the briefing on file, the parties' arguments at the hearing, and the entire file, defendants' motions to dismiss will be granted. Plaintiffs have failed to allege a cognizable claim giving rise to federal jurisdiction. Jurisdiction exists in this case because of plaintiffs' claims pled pursuant to 42 U.S.C. § 1983.

However, those claims are inadequately pled, and without a federal claim for relief, the court would recommend that the assigned District Judge decline to exercise jurisdiction over plaintiffs' remaining state law claims. The instant order addresses primarily plaintiffs' § 1983 claims and identifies the deficiencies in those claims. Nonetheless, the court will grant plaintiffs an opportunity to amend their complaint in an attempt to state a cognizable § 1983 claim, thereby supplying grounds for jurisdiction.*fn1

BACKGROUND

In their complaint, plaintiffs allege as follows. On December 6, 2010, an apartment building they own was damaged in a fire. Thereafter, plaintiffs hired defendant Inderjit S. Toor Construction Company, based upon the recommendation of defendant Jeff Mangili, plaintiffs' insurance agent, to draw up building plans and obtain building permits to rebuild the apartment building ("property"). (Compl. (Doc. No. 1) at 7.*fn2

On February 28, 2011, defendant Harinder Toor, owner of Inderjit S. Toor Construction Company submitted an invoice to Jeff Mangili in the amount of $17,160 for work done on the property. On April 15, 2011, defendant Sabino Urrutia, the owner of defendant One Point Design Group, submitted an invoice in the amount of $9,210 for the drawing of preliminary building plans for the property. On April 18, 2011, Harinder Toor submitted an additional invoice in the amount of $878.50. (Id. at 8.)

On October 12, 2011, defendant City of Stockton inspected the property and determined that it was a public nuisance that violated the applicable health and safety codes. On October 20, 2011, Harinder Toor and Inderjit S. Toor Construction Company filed a mechanic's lien against the property. On October 26, 2011, the City of Stockton, through its employee Robert Chase, issued a Notice and Order with Intent to Abate by Demolition certain structures at the property. (Id. at 8.)

On November 1, 2011, plaintiff Sam Tavake sent the Building Department for the City of Stockton a letter asking for an extension of time to comply with the abatement order. Plaintiffs did not receive a response to that letter. On November 5, 2011, plaintiff Sam Tavake wrote Harinder Toor a letter disputing the mechanic's lien. That same day plaintiffs sent a letter to defendant Allied Insurance Company (a/k/a AMCO Insurance Company), complaining about the work performed by Inderjit S. Toor Construction Company and One Point Design Group. (Id. at 8-9.)

On November 10, 2011, Teresa L. Mitchell, Claims Director for AMCO Insurance Company notified plaintiffs that defendant Sabino Urrutia had informed Mitchell that the needed repairs to the property's plans were being addressed. On November 11, 2011, defendant James Andrew Aspegren, a claims agent for AMCO Insurance Company, responded by letter to a phone message left by Tami Tavake.*fn3 (Id. at 9.)

On November 29, 2011, Tami Tavake went to the Building Department of the City of Stockton to file her notice of appeal of the October 26, 2011 abatement order. Defendant Chuck Lamar, an employee of the Building Department, refused to accept the notice of appeal. Moreover, Chuck Lamar threatened Tami Tavake, telling her that if she did not sign an indemnification agreement, the City of Stockton would obtain a warrant and demolish the property, which would cost plaintiffs $50,000 to $60,000 in demolition fees. Tami Tavake signed the indemnification agreement as a result of Lamar's threats and coercion. (Id. at 9-10.)

Plaintiffs commenced this action on December 8, 2011, by paying the required filing fee and filing a complaint. (Doc. No. 1.) Plaintiffs allege federal causes of actions against defendants Chuck Lamar and the City of Stockton, pursuant to 42 U.S.C. § 1983, for violations of plaintiffs' rights under the Fourth, Fifth and Fourteenth Amendments. Plaintiffs also allege federal causes of action against defendants Jeff Mangili, James Aspergren, Harinder Toor, Sabino Urrutia and Chuck Lamar for violating plaintiffs' rights under the Fifth and Fourteenth Amendments. Finally, plaintiffs allege several state law causes of action. (Compl. (Doc. No. 1) at 1, 13-14.)

On December 20, 2011, defendant City of Stockton filed an answer. (Doc. No. 5.) On January 23, 2012, defendants Sabino Urrutia and One Point Design Group also filed answers. (Doc. Nos. 10 & 11.) On January 30, 2012, defendants Inderjit S. Toor Construction, Inc., and Harinder Toor filed a motion to dismiss. (Doc. No. 13.) On February 3, 2012, defendant AMCO Insurance Company filed an answer. (Doc. No. 17.) On February 10, 2012, defendants James Andrew Aspegren and Jeff Mangili filed a motion to dismiss. (Doc. No. 18.)

On February 14, 2012, plaintiffs filed an opposition to the motion to dismiss filed by defendants Inderjit S. Toor Construction, Inc., and Harinder Toor. (Doc. No. 27.) On February 23, 2012, the City of Stockton filed statements of non-opposition to each pending motion to dismiss. (Doc. Nos. 29 & 30.) On March 2, 2012, plaintiffs filed an opposition to the motion to dismiss filed by defendants James Andrew Aspegren and Jeff Mangili. (Doc. No. 32.) On March 9, 2012, defendants Inderjit S. Toor Construction, Inc., and Harinder Toor filed a reply to plaintiffs' opposition. (Doc. No. 33.) On March 16, 2012, defendants James Andrew Aspegren and Jeff Mangili filed a reply to plaintiffs' opposition. (Doc. No. 34.)

LEGAL STANDARDS APPLICABLE TO DEFENDANTS' MOTIONS

Pursuant to the Federal Rule of Civil Procedure 12(b)(5), a defendant may move to dismiss the action where the plaintiff has failed to effect proper service of process in compliance with the requirements set forth under Federal Rule of Civil Procedure 4 for serving a defendant. Fed. R. Civ. P. 12(b)(5). If the court determines that the plaintiff has not properly served the defendant in accordance with Federal Rule of Civil Procedure 4, the court has discretion to either dismiss the action for failure to effect proper service, or instead merely quash the ineffective service that has been made on the defendant in order to provide the plaintiff with the opportunity to properly serve the defendant. See Marshall v. Warwick, 155 F.3d 1027, 1032 (8th Cir. 1998) ("[D]ismissal [is not] invariably required where service is ineffective: under such circumstances, the [district] court has discretion to either dismiss the action, or quash service but retain the case").

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

ANALYSIS

I. Rule 12(b)(5)

Defendants Mangili and Aspegren assert that plaintiffs have not properly served their complaint upon them. In this regard, defendants argue that plaintiffs improperly served them by certified mail without obtaining a signed acknowledgment. (MTD (Doc. No. 19) at 4.)

When a defendant challenges service, the plaintiff bears the burden of establishing the validity of service as governed by Rule 4 of the Federal Rules of Civil Procedure. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). Rule 4 provides that an individual may be served with a complaint by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is ...


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