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Enrique Gonzales Hernandez v. Moris Senegor

May 10, 2013

ENRIQUE GONZALES HERNANDEZ, PLAINTIFF,
v.
MORIS SENEGOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 1983. Pending before the court is defendant Dr. Moris Senegor's January 31, 2013 motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2), (4), and (5). ECF No. 20. Also pending is defendants R.K. Baldwin, Scott Heatley, H. Hettema, and Smith's February 11, 2013 motion to dismiss pursuant to 12(b)(5) and 4(m). ECF No. 21. Plaintiff opposes both motions. On review of the motions, the documents filed in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

RELEVANT BACKGROUND*fn1

On December 7, 2011, plaintiff initiated this action and paid the filing fee in full. On March 13, 2012, the court screened and dismissed the complaint with leave to amend. ECF No. 5. On April 9, 2012, plaintiff filed the operative first amended complaint, which proceeds as screened on July 30, 2013 against defendants Baldwin, Hettema, Heatley, Senegor, and Smith. ECF Nos. 6, 8. In the July 30, 2013 screening order, plaintiff was directed to complete service of process on the defendants within sixty days from the date of the order. ECF No. 9. The court also warned plaintiff of the following:

The failure of any party to comply with this order, the Federal Rules of Civil Procedure, or the Local Rules of Court, may result in the imposition of sanctions including, but not limited to, dismissal of the action or entry of default. See Fed. R. Civ. P. 41(b).

Id. at 6, ¶ 13.

On August 13, 2012, plaintiff filed a request to have the United States Marshal serve the defendants. ECF No. 12. The court denied plaintiff's request on the ground he was not proceeding in forma pauperis, but granted plaintiff an opportunity to submit an application to proceed as such. ECF No. 14.

On September 5, 2012, plaintiff filed a motion to proceed in forma pauperis. ECF No. 15. On September 21, 2012, the court denied this motion because plaintiff failed to demonstrate indigence. ECF No. 16. Plaintiff was then directed to serve the defendants in accordance with Federal Rule of Civil Procedure 4. Id.

On January 22, 2013, plaintiff filed five Proofs of Service, each signed by Joe Nerio of South Bay Attorney Service. ECF Nos. 18-19. The first Proof of Service reflects that the process server received the summons for defendant Senegor on January 7, 2013 and personally served him at 500 West Hospital Road, French Camp, CA on January 10, 2013. ECF No. 18. The second through fifth Proofs of Service reflect that the process server received the summons for defendants Baldwin, Hettema, Heatley, and Smith on January 7, 2013 and personally served these defendants at Mule Creek State Prison, 4001 Highway 104, Ione, CA on January 11, 2013. ECF No. 19.

On January 31, 2013, defendant Senegor moved to dismiss this action for lack of personal jurisdiction in light of plaintiff's alleged failure to properly and timely serve him. Alternatively, Senegor moves to quash the service of process. On February 11, 2013, defendants Baldwin, Heatley, Hettema, and Smith filed a substantively identical motion. Plaintiff opposes both motions.

DISCUSSION

A. Insufficient Process

A challenge to the form of process, rather than the manner of its service, is properly raised under Federal Rule of Civil Procedure 12(b)(4). See 5B Wright & Miller, Federal Practice and Procedure, ยง 1353 (3d ed.). A Rule 12(b)(4) motion challenges noncompliance with the provisions of Rule 4(b) or any applicable provision incorporated by Rule 4(b) that deals specifically with the ...


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