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Thomas v. United Air Lines, Inc.

United States District Court, Ninth Circuit

December 12, 2013

SYLVIA THOMAS, Plaintiff,
v.
UNITED AIR LINES, INC.; RAFAEL PADILLA CRUZ; AND DOES 1-50, inclusive, Defendants.

ORDER AND FINDINGS AND RECOMMENDATIONS

EDMUND F. BRENNAN, Magistrate Judge.

On November 6, 2013, defendant Rafael Cruz, specially appearing, filed a motion to dismiss the complaint for insufficient service of process pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(5) and failure to state a claim pursuant to Rule 12(b)(6).[1] ECF No. 30. Plaintiff did not file an opposition to the motion; rather, plaintiff filed a motion to strike defendant's motion to dismiss and a motion for default judgment. ECF No. 33. For the following reasons, defendant's motion must be granted and plaintiff's motions be denied.

I. BACKGROUND

Plaintiff's complaint alleges that defendants' negligence caused her to suffer personal injuries during a United Air Lines ("UAL") flight on August 19, 2009. ECF No. 1 at 2. Plaintiff originally filed suit in the Sacramento County Superior Court on August 17, 2011. Ex. A to Pl.'s Compl., ECF No. 1 at 7-11. The state court case was scheduled for trial to begin on April 8, 2013, but on April 3, 2013, plaintiff filed a Request for Dismissal of the entire action and a dismissal was entered the same day. Exs. B, C to Pl.'s Compl., ECF No. 1 at 14-15, 59.

Then, on April 17, 2013, plaintiff filed a complaint herein, which she labeled an "Amended Complaint." ECF No. 1. Plaintiff alleges that this court has diversity jurisdiction since plaintiff is a resident of California, and both UAL and defendant Rafael Padilla Cruz are alleged to be citizens of Illinois, and the amount in controversy exceeds $75, 000. Id. at 1-3; see also ECF No. 1-1.

On May 21, 2013, UAL moved to dismiss plaintiff's complaint for failure to state a claim. ECF No. 5. On July 11, 2013, findings and recommendations issued recommending that UAL's motion be granted. ECF No. 14. In the findings and recommendations, the undersigned observed that defendant Cruz had not appeared in this action, and that it did not appear from the docket that Cruz had been timely and properly served. Id. at 6. Therefore, plaintiff was ordered to show cause why Cruz should not be dismissed for failure to effect service of process within the time prescribed by Rule 4(m). Id.

On July 25, 2013, plaintiff responded to the order to show cause, indicating that defendant Cruz was served on May 7, 2013, and that the executed summons was filed on May 20, 2013. ECF No. 17. In light of those representations, on July 30, 2013, the court discharged the July 11, 2013 order to show cause. Id. at 1. The court made no determination of whether service was proper, but directed plaintiff to request a clerk's entry of Cruz's default if plaintiff believed service was proper. Id. at 2. On August 20, 2013, the assigned district judge adopted the July 11, 2013, findings and recommendations and dismissed defendant UAL from this action. ECF No. 19.

Then, on August 29, 2013, plaintiff requested the clerk to enter Cruz's default. ECF No. 21. On September 3, 2013, defendant UAL filed objections to plaintiff's request for entry of default. ECF No. 22. In its objections, UAL argued that Cruz was not properly served because plaintiff served process on Prentice Hall Corporation, which is the designated agent of service of process for UAL, but not the designated agent for Cruz. Id. at 2. On September 4, 2013, the clerk declined plaintiff's request for entry of default, stating that defendant Cruz was improperly served through Prentice Hall Corporation. ECF No. 26.

On November 6, 2013, defendant Cruz filed the instant motion to dismiss. Cruz argues that plaintiff's claim against him should be dismissed because he was never properly served and, in any event, plaintiff's personal injury claim is barred by the statute of limitations. ECF No. 30-1. As explained below, the undersigned finds that Cruz was not properly served and that the action is barred by the statute of limitations.

II. RULE 12(B)(5) MOTION

A. Standard

Rule 12(b) (5) of the Federal Rules of Civil Procedure authorizes a motion to dismiss for insufficiency of service of process. The plaintiff bears the burden of establishing that service was properly effected. Solorio v. Astrue, No. 07-CV-0508-H (POR), 2008 WL 5122177, *1 (N.D. Cal. Dec. 5, 2008). An individual may be served by following state law for service of process, delivering a copy of the summons and complaint to the individual personally, and leaving a copy of each at the individual's dwelling with someone of suitable age, or by delivering a copy of each to an agent authorized to receive process on the individual's behalf. Fed.R.Civ.P. 4(e).

If a plaintiff fails to timely serve an opposing party, the court may either dismiss the action without prejudice as to that defendant or direct the plaintiff to effect service within a specified time. Fed.R.Civ.P. 4(m). Where the plaintiff demonstrates good cause for his failure to effect service, the court must extend the time for service. Id. Absent a showing of good cause, it is within the court's ...


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