ORDER DENYING DEFENDANT'S MOTION TO DISMISS
ORDER GRANTING MOTION FOR MORE DEFINITE STATEMENT Re: Docket No. 33
MARIA-ELENA JAMES, Magistrate Judge.
Before the Court is Defendant Anthony Moschetti's Motion to Dismiss Plaintiff A.S. Ramirez's First Amended Complaint ("FAC") and Motion for More Definite Statement. Dkt. No. 33 ("Mot."). Defendant moves to dismiss the FAC pursuant to Federal Rule of Civil Procedure ("Rule") 4(m) for Plaintiff's failure to serve him within 120 days after filing the FAC. Defendant also moves to dismiss for pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. In the alternative, Defendant moves for a more definite statement under Rule 12(e). Plaintiff has filed an Opposition to the Motion. Dkt. No. 34 ("Opp'n"). Pursuant to Civil Local Rule 7-1(b), the Court finds this matter suitable for disposition without oral argument and VACATES the November 21, 2013 hearing. Having considered the parties' papers, relevant legal authority, and the record in this case, the Court hereby DENIES Defendant's Motion to Dismiss and GRANTS Defendant's Motion for a More Definite Statement for the reasons set forth below.
A. Procedural Background
Elisa Ramirez, as Guardian ad Litem for Plaintiff A.S., a minor, filed the initial Complaint in this matter on September 14, 2012, alleging causes of action under 42 U.S.C. § 1983 and related state law causes of action against the County of Alameda, the Sheriff's Department, and Sheriff Gregory Ahern. Dkt. No. 1. The caption contained no reference to any Doe Defendants, although the body of the Complaint made reference to Does 1-25, who were alleged to be legally responsible for Plaintiff's injuries. Dkt. No. 1, ¶ 7. The named defendants moved to dismiss the claims brought against them, and the Court granted that motion with leave to amend on January 23, 2013. Dkt. Nos. 16, 20. The Order gave Plaintiff until February 5, 2013, to file an amended complaint. Dkt. No. 20 at 5:17-20.
Plaintiff did not file an amended complaint by February 5, 2013. Instead, two months later, on April 3, 2013, he moved for leave to amend the pleadings pursuant to Rule 15, seeking to substitute Sergeant K. Ritter and Deputy Moschetti for Does 1 and 2 and to dismiss any causes of action against the County of Alameda and Sheriff Ahern. Dkt. No. 23 at 3:8-12. Plaintiff's counsel stated that the reason for the failure to meet the deadline for amendment was that counsel was preparing for trial. Lacy Decl., ¶ 4, Dkt. No. 23-1. Not being a party to this action at that time, neither Defendant Moschetti nor Defendant Ritter opposed the motion. The Court granted the motion for leave to amend on April 19, 2013, ordering Plaintiff to separately e-file the FAC, which she did on April 19, 2013. Dkt. Nos. 24, 25.
In a Stipulation filed on September 30, 2013, Defendant Moschetti's attorney agreed to accept service of the FAC on his behalf, effective the date the Court signed the Stipulation and Order. Dkt. No. 28. In the Stipulation, Defendant reserved all rights to move to dismiss the FAC on both procedural and substantive grounds in that stipulation. Id. at 4:7-9. The Court approved the Stipulation on October 2, 2013. Dkt. No. 29. Thus, Plaintiff effected service on Defendant 383 days after filing the original Complaint and 166 days after filing the FAC.
B. Factual Background
The following background is taken from Plaintiff's FAC. On September 17, 2011, Plaintiff attended an adult-supervised house party with his girlfriend at 170th Robey Drive, San Leandro, California. FAC ¶¶ 11-12. As Plaintiff and his girlfriend were leaving the house, his girlfriend was attacked by some male partygoers. Id. ¶ 13. Plaintiff defended his girlfriend from the two male attackers. Id. ¶ 14. Soon after, the male attackers left the scene and Plaintiff began to walk up a nearby hillside toward the house, at which time Alameda County Sheriff's deputies showed up at the scene and began to aim their submachine guns with laser scopes at Plaintiff. Id. ¶¶ 15-16. Plaintiff was unaware of the deputies' presence and continued up the hillside when one of the deputies shouted, "Get the Black guy!" Id. ¶ 17. The deputies fired their tasers, which made contact with Plaintiff's body, causing tremendous pain and discomfort. Id. ¶ 18. Plaintiff immediately fell to the ground and complied with the commands of the deputies. Id. ¶ 19. Once Plaintiff was lying down on the ground with his hands behind his back, one of the deputies quickly approached Plaintiff and tasered him again. Id. Another deputy placed a knee on his neck, while he handcuffed him. Id. ¶ 20. The deputies took Plaintiff into custody and transported him to Eden Medical Center in Castro Valley, California, where he was treated for cuts and bruises. Id. ¶ 23. During his time at the hospital, the deputies harassed Plaintiff with racist jokes about his being African-American, as well as taunts about the possibility of being tasered again. Id. ¶ 24.
Plaintiff filed his FAC on April 19, 2013, alleging eight causes of action: (1) a claim under 42 U.S.C. § 1983 for violation of his right to be free from unreasonable seizures under the Fourth Amendment to the United States Constitution; (2) a claim under § 1983 for violation of his right to be free from unlawful detention under the Fourth Amendment; (3) a claim under § 1983 for violation of his right to be free from unlawful arrest under the Fourth Amendment; (4) assault and battery; (5) false arrest and imprisonment; (6) intentional infliction of emotional distress; (7) violation of California Civil Code section 52.1; and (8) negligence. FAC ¶¶ 28-51.
A. Motion to Dismiss under Rule 4(m)
In his Motion, Defendant first argues that dismissal is appropriate because Plaintiff failed to serve him within 120 days after he filed suit. Mot. at 2. Defendant argues that Plaintiff made no attempt to effectuate service during the 120 days. Id. at 6. He maintains that he did nothing to avoid service-he was working for the ...