United States District Court, N.D. California, San Jose Division
KENNETH B. QUANSAH, JR. Plaintiff,
DEL CORONADO APARTMENTS, et al., Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS Re:
Dkt. No. 6
J. DAVILA United States District Judge
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.
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.
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.
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
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
Del Coronado Apartments moves for dismissal under two rules,
only one requires discussion at this point.
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)).
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).
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.