Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Quansah v. Del Coronado Apartments

United States District Court, N.D. California, San Jose Division

May 2, 2017

KENNETH B. QUANSAH, JR. Plaintiff,
v.
DEL CORONADO APARTMENTS, et al., Defendants.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS Re: Dkt. No. 6

          EDWARD J. DAVILA United States District Judge

         Plaintiff Kenneth B. Quansah, Jr. (“Plaintiff”) filed this putative civil rights action against Defendants Del Coronado Apartments and the City of San Jose after he was removed, or as he puts it, “evicted” from a residence. Federal jurisdiction arises pursuant to 28 U.S.C. § 1331, and Del Coronado Apartments moves to dismiss the Complaint. Dkt. No. 6. Plaintiff opposes.

         Because this matter is suitable for decision without oral argument, the motion hearing will be vacated. And because Plaintiff has not established that any defendant was properly served with process, the motion to dismiss will be granted for the reasons explained below.

         I. BACKGROUND

         The factual allegations in the “Complaint for Punitive Damages, Compensatory Damages and Damages” are sparse. The court infers that Plaintiff was living in a residence located within the Del Coronado Apartments. Plaintiff alleges that on an unspecified date and without prior notice, Officers Lee and Harris “evicted Plaintiff from his apartment and permanent place of abode with excessive force.” Dkt. No. 1, at p. 3. He alleges the officers removed him “in the middle of the night” from “the apartment door and dragged him to a transporting police car by the side of the street, ” even though he had paid rent. Id. at p. 4. Plaintiff suffered severe “cuts, bruises, twisted arms, injured wrist, fractured arms and shoulders” and needed medical care. Id. Plaintiff alleges “the officers claim [P]laintiff is a foreigner and came to this country to take advantage of them.” Id. at p. 4.

         As to Del Coronado Apartments, Plaintiff alleges it “replaced the old lock to the apartment” while he was out, leaving him “locked-out.” Id. at p. 5. He claims an unspecified person “said [P]laintiff is a foreigner and came from Africa to take advantage of him.” Id.

         Plaintiff's federal cause of action appears to arise under 42 U.S.C. §§ 1981 and 1983. He also lists a series of potential causes of action under state law, including negligence, defamation, and intentional and infliction of emotional distress.

         II.LEGAL STANDARD

         Though Del Coronado Apartments moves for dismissal under two rules, only one requires discussion at this point.

         “A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under [Rule] 4.” Direct Mail Specialists v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988); see also Murphy Bros., Inc. v. Mitchell Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (“Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.”). Mere notice that a lawsuit is pending is not sufficient. Rohit Biochem Pvt. Ltd. v. Arya Group, Inc., No. CIV S-07-1575 FCD GGH, 2009 U.S. Dist. LEXIS 48740, at *3, 2009 WL 1635175 (E.D. Cal. June 10, 2009) (citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987)).

         Federal Rule of Civil Procedure 12(b)(5) permits a defendant to challenge the mode or method of service of the summons and complaint. Where the validity of service is contested, the burden is on the party claiming proper service to establish its validity. Cranford v. United States, 359 F.Supp.2d 981, 984 (E.D. Cal. 2005) (citing Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993)). If service of process is insufficient, the court may dismiss an action or simply quash the service. See S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006).

         III. DISCUSSION

         Under Rule 12(b)(5), Del Coronado Apartments argues the causes of action asserted against it must be dismissed, or that service of process must be quashed, because the method of service utilized by Plaintiff was inconsistent with the applicable authority. This argument is meritorious not only as to it, but as to the other defendant as well.

         A. Del ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.