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George M. Kassab, et al v. United States Department of Agriculture

July 16, 2012

GEORGE M. KASSAB, ET AL.,
PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,
DEFENDANTS DEFENDANTS.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER GRANTING MOTION TO SET ASIDE DEFAULT, DENYING MOTIONS TO DISMISS, AND ORDERING PLAINTIFFS TO SERVE

Pending before the Court are Defendants' Motion to Set Aside Default (Doc. 23), first Motion to Dismiss (Doc. 24), and second Motion to Dismiss (Doc. 27). For the reasons set forth herein, the Court GRANTS the Motion to Set Aside Default, DENIES the Motions to Dismiss, and ORDERS Plaintiffs to serve all Defendants within 45 days of the entry of this Order in the manner prescribed by Federal Rule of Civil Procedure 4. The Court also ORDERS the parties to appear before the Court for a show cause hearing on Monday, September 10, 2012, at 2:00 p.m.

a. Motion to Set Aside Default

Defendants argue that Defendant United States Department of Agriculture ("USDA") was improperly served, and that the entry of default against Defendant USDA should therefore be set aside. The Court agrees, and GRANTS the Motion to Set Aside Default. See Mason v. Genisco Technology Corp., 960 F.2d 849, 851 (9th Cir. 1992) (holding that improper service presents good cause to set aside entries of default). The Clerk shall set aside the default entered against Defendant USDA (Doc. 22).

b. Motions to Dismiss

The Motions to Dismiss are also based entirely on Defendants' allegations of improper service. In their first Motion to Dismiss, filed on December 22, 2011, Defendants claimed that Plaintiffs had not properly served the individual defendants because Plaintiffs had served a copy of the summons and complaint on neither the United States Attorney's Office nor the United States Attorney General's Office. On February 28, 2012, Plaintiffs filed a certificate of service (Doc. 26), showing that Plaintiffs served a copy of the summons and complaint on the United States Attorney's Office for the Southern District of California. In their second Motion to Dismiss, filed April 13, 2012, Defendants argued that Plaintiffs still had not served a summons and complaint on the United States Attorney General's Office. Defendants also argued that Defendant Flowers was not properly served in her individual capacity because Defendant Keh, the party that Plaintiffs actually served, was not authorized to receive service for Defendant Flowers in her individual capacity. Defendants also alleged that Defendant Wilusz never received service.

Where a plaintiff has not served a defendant within the 120-day period prescribed by Federal Rule of Civil Procedure 4(m), the Court has discretion either to "dismiss the action without prejudice against that defendant or order that service be made within a specified time." The Court declines to dismiss this case as a result of the previous defects in Plaintiffs' efforts to serve Defendants, and accordingly DENIES both Motions to Dismiss. The Court ORDERS that Plaintiffs must serve all Defendants within 45 days of the entry of this Order. The Court further ORDERS that the parties shall appear before the Court on Monday, September 10, at 2:00 p.m., and ORDERS Plaintiffs to show cause at the September 10 hearing why this case should not be dismissed for failure to effectuate service.

c. Instructions for Service

Federal Rule of Civil Procedure 4(i)(1) sets forth the service requirements for United States agencies, and Rule 4(i)(2) sets forth the service requirements for United States officers and employees sued in their official capacities. Rule 4(i)(3) sets forth the service requirements for United States officers and employees sued in their individual capacities. To be absolutely clear, in order to serve Defendants properly, Plaintiffs must do the following with respect to each Defendant:

Defendant United States Department of Agriculture. Plaintiff must serve a copy of the summons and complaint on each of the following:

1. The United States Attorney's Office for the Southern District of California. This Plaintiffs have already done (Doc. 26).

2. The United States Attorney General's Office, by registered or certified mail. This Plaintiffs have not done.

3. The United States Department of Agriculture, by registered or certified mail. This Plaintiffs have done. (Doc. 16).

Individual defendants in their official capacities (Jocelyn J. Keh, Sylvia Flowers, Daniel Wilusz). Plaintiff must serve a copy of the summons ...


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