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Bothwell v. Brennan

United States District Court, N.D. California

March 6, 2014

JOHN O. BRENNAN, Defendant.



This case involves Plaintiff Anthony P. X. Bothwell's Freedom of Information Act ("FOIA") request for documents from the Central Intelligence Agency ("CIA") related to the Kennedy brothers' assassinations. Now pending before the Court is Defendant John O. Brennan's Motion to Dismiss. (Dkt. No. 6.) Brennan moves to dismiss the Complaint pursuant to Rules 12(b)(4), (5), and (6) for insufficient process, insufficient service of process, and failure to state a claim upon which relief can be granted. The Court finds this motion appropriate for resolution without oral argument and therefore vacated the hearing. See Civil L.R. 7-1(b). After carefully considering the parties' submissions, the Court GRANTS Defendant's Motion to Dismiss as to Brennan, and DENIES the motion as to the CIA.[1]


On February 11, 2009, Plaintiff made a FOIA request for all records relating to three individuals, Johnny Roselli, Jean Souetre, and David Morales, allegedly connected to the assassination of President John F. Kennedy. (Complaint ¶ 11.) The CIA's April 9, 2009 response stated that no records pertaining to the individuals were generated during the time period specified by Plaintiff, and if they did exist, they would be classified as "intelligence sources and methods information." ( Id. ¶ 13.) On May 7, 2009, Plaintiff appealed the response. ( Id. ¶ 11.) The CIA subsequently "promised" to arrange for its Agency Release Panel to consider the appeal, but has not followed up on this guarantee. ( Id. )

Similarly, on July 12, 2009, Plaintiff made a FOIA request for records relating to two individuals, Thane Eugene Cesar and Enrique Hernandez, who were both allegedly connected to the assassination of Senator Robert F. Kennedy. ( Id. ¶ 17.) The CIA's September 18, 2009 final response denied the request on the ground that the records are CIA "operational files" exempt from FOIA. ( Id. )

Plaintiff filed the Complaint on November 22, 2013, claiming the CIA improperly denied the FOIA requests. ( Id. ¶ 19.) The caption of the Complaint names John O. Brennan, Director, Central Intelligence Agency, United States of America as Defendant. ( Id. ) On December 19, 2013, a copy of the Summons and Complaint was delivered to a person authorized to receive service on behalf of U.S. Attorney Melinda Haag at the office of the U.S. Attorney in San Francisco. (Dkt. No. 5 at 1.) Defendant Brennan filed the pending Motion to Dismiss on January 21, 2014, alleging improper service of process among other things. (Dkt. No. 6 at 3.) On January 27, 2014, Plaintiff sent by certified mail a copy of the Summons and Complaint to: (1) the U.S. Attorney General; and (2) the CIA Litigation Division. (Dkt. No. 10, Exs. 1, 2.)

Plaintiff also used the services of Preferred Legal Service ("PLS") to send licensed process servers to deliver a copy of the Summons and Complaint to the Office of the CIA director at the agency's headquarters in Langley, Virginia. ( Id., Bothwell Decl. ¶ 6.) PLS informed Plaintiff that CIA security blocked them from accessing the headquarters, and that the CIA Litigation Division insisted that the Summons and Complaint be served in compliance with 32 C.F.R. Section 1904.3. ( Id. ¶¶ 7-8.)


A. Motion to Dismiss for Insufficient Process & Insufficient Service of Process

The Court lacks jurisdiction over defendants who have not been properly served in accordance with Federal Rule of Civil Procedure 4. S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007). Accordingly, Rules 12(b)(4) and 12(b)(5) permit a court to dismiss an action for insufficiency of service of process. Fed.R.Civ.P. 12(b)(4)-(5). Rule 12(b)(4) enables the defendant to challenge the substance and form of the summons, and 12(b)(5) allows the defendant to attack the manner in which service was, or was not, attempted. Id. When the validity of service is contested, the burden is on the plaintiff to proof that service was valid under Rule 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). If the plaintiff is unable to satisfy this burden, the Court has the discretion to either dismiss the action or retain the action and quash the service of process. Stevens v. Sec. P. Nat'l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976).

"Dismissals for defects in the form of summons are generally disfavored." U.S.A. Nutrasource, Inc. v. CNA Ins. Co., 140 F.Supp.2d 1049, 1052 (N.D. Cal. 2001). "Technical defects in a summons do not justify dismissal unless a party is able to demonstrate actual prejudice." Chan v. Society Expeditions, 39 F.3d 1398, 1404 (9th Cir. 1994). In addition, "[e]ven if the summons fails to name all of the defendants... dismissal is generally not justified absent a showing of prejudice." United Food & Commercial Workers Union, Locals 197, et al. v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984) (internal citations omitted) ("Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint.").

B. Motion to Dismiss for Failure to State a Claim

A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl.Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facial plausibility standard is not a "probability requirement" but mandates "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). "[D]ismissal may be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotation marks and citations omitted); see also Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.").

Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), under which a party is only required to make "a short and plain statement of the claim showing that the pleader is entitled to relief, " a "pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555.) "[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively"). The court must be able to "draw the reasonable inference that the defendant is liable for the ...

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