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Rodney E. Akins v. San Diego Community College

January 2, 2013

RODNEY E. AKINS,
PLAINTIFF,
v.
SAN DIEGO COMMUNITY COLLEGE , ET AL., DEFENDANT.



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

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND GRANTING PLAINTIFF'S MOTIONS TO AMEND AND FOR DISTRICT APPOINTMENT OF A PROCESS SERVER

On July 5, 2012, Defendants SAN DIEGO COMMUNITY COLLEGE DISTRICT*fn1 ("District"), PENNY HEDGECOTH and MATTHEW TORRES, employees of the District (together, "District Parties") filed a motion to dismiss Plaintiff's First Amended Complaint ("Complaint"). In addition, Plaintiff has also filed an ex parte application for appointment of a process server and a motion for leave to file a second amended complaint. For the reasons below, the Court GRANTS in part and DENIES in part Defendants' motion to dismiss, GRANTS Plaintiff's ex parte application to appoint a process server, and GRANTS Plaintiff's motion for leave to file a second amended complaint. Plaintiff shall have ninety (90) days from the date of this order in which to properly serve defendants.

I. BACKGROUND

In his Complaint, Plaintiff RODNEY E. AKINS alleges that on May 25, 2010, he attempted to effect service of process for nine defendants in a case in San Diego Superior Court via the mail center at the Mesa College Campus, but was deterred from doing so by Defendant PENNY HEDGECOTH, a District employee. According to the Complaint, Defendant HEDGECOTH called the campus police, and Defendant MATTHEW TORRES, a campus police officer, subsequently stopped Plaintiff and, along with another officer, Defendant JOHN DOE 3, detained Plaintiff using force, resulting in an alleged injury to his rotator cuff.

II. DISCUSSION

Defendants move to dismiss the Complaint on the grounds that: 1) service of process was defective as to all Defendants; 2) the District and District Parties are immune from suit under the Eleventh Amendment as to Counts 1-3 and 5-14, as well as Count 4 to the extent it is based on 42 U.S.C. § 1983; and 3) Plaintiff has failed to state a claim upon which relief can be granted, both as to the Complaint in its entirety and to the fourth cause of action for racial discrimination under Title VI.

A. Service of Process

Defendants move to dismiss the Complaint in part for insufficient service of process. See Fed.R.Civ.P. 12(b)(5). "Once service is challenged, plaintiffs bear the burden of establishing that service was valid under Rule 4." Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). While "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), there must still be "substantial compliance" with Rule 4; otherwise, "neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction." Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988) (quoting Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987)).

Under Rule 4, an individual defendant may be served 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 located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and ...


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