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Heuvel v. Expedia Travel

United States District Court, E.D. California

June 1, 2017

JEAN MARC VAN DEN HEUVEL, Plaintiff,
v.
EXPEDIA TRAVEL, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on Defendant Expedia Inc.'s Motion to Dismiss Plaintiff's Second Amended Complaint. ECF No. 36. Plaintiff is proceeding in pro se, and the matter was accordingly referred to the magistrate judge by E.D. Cal. R. (“Local Rule”) 302(c)(21).

         I. BACKGROUND

         A. Relevant Procedural History

         This lawsuit was removed from the Sacramento County Superior Court by former defendant British Airways on March 18, 2016. See ECF No. 1. British Airways moved to dismiss plaintiff Jean Marc Van Den Heuvel's pro se complaint, and the motion was granted by the undersigned with leave to amend. ECF No. 15. Plaintiff filed a First Amended Complaint on May 31, 2016. ECF No. 18. British Airways moved to dismiss the First Amended Complaint, and the undersigned granted the motion with leave to amend. ECF No. 19 and 25. On August 5, 2016, plaintiff filed a Second Amended Complaint. ECF No. 26. On August 25, 2016, plaintiff and British Airways filed a stipulated motion for dismissal of British Airways as a defendant. ECF No. 30. The motion was granted, leaving Expedia Inc. (“Expedia”) as the only remaining defendant in this case. ECF No. 31.

         On September 1, 2016, the undersigned issued an Order to Show Cause to plaintiff, noting that plaintiff did not appear to be prosecuting his case against Expedia, Inc. and that the Court had not received any proof that Expedia had been served. ECF No. 33, 1. The Court received a Proof of Service form from plaintiff indicating that a process server mailed a “Copy of Summons and Complaint to Expedia Travel as follows [:] Corporate Secretary, 333108th Ave. N.E. Bellevue, WA 98004.” ECF 35, 1. Defendant Expedia filed its Motion to Dismiss on October 13, 2016. ECF No. 36. Noting that Plaintiff had filed proof of service on Expedia, the undersigned discharged its Order to Show Cause and set a hearing date for defendant's Motion to Dismiss. ECF No. 39. The hearing was held on December 14, 2016, and the fully briefed Motion to Dismiss is now before the Court. ECF No. 43.

         B. The Claims

         Expedia moves to dismiss Plaintiff's Second Amended Complaint for (1) untimely and insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5), and (2) failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

         II. ANALYSIS

         A. Motion to Dismiss for Insufficient Service of Process

         As the court explains below, plaintiff has insufficiently served defendant but has made an adequate showing of cause for the failure to perfect service. In light of that showing, and considering the actual notice and lack of prejudice to defendant, the undersigned recommends denial of defendant's motion to dismiss for insufficient service.

         “Under the Federal Rule of Civil Procedure 12(b)(5), a defendant may challenge any departure from the proper procedure for serving the summons and complaint as “insufficient service of process.” Fed.R.Civ.P. 12(b)(5). Once a defendant challenges service of process, the plaintiff has the burden of establishing the validity of service of process under Rule 4.” Schauf v. Am. Airlines, No. 1:15-CV-01172-SKO, 2015 WL 5647343, at *4 (E.D. Cal. Sept. 24, 2015).

         “As a general principle, ‘Rule 4 is a flexible rule that should be liberally construed, ' Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir.1984), and ‘substantial compliance with the service requirements of Rule 4 is sufficient so long as the opposing party receives sufficient notice.' Daly-Murphy v. Winston, 837 F.2d 348, 355 n. 4 (9th Cir.1987).” Id.In the Ninth Circuit, failure to comply with Rule 4's “personal service requirement does not require dismissal of the complaint if (a) the party that had to be served personally received actual notice, (b) the defendant would suffer no prejudice from the defect in service, (c) there is a justifiable excuse for the failure to serve properly, and (d) the plaintiff would be severely prejudiced if his complaint were dismissed.” Borzeka, 739 F.2d at 447.

         Plaintiff filed a proof of service on September 20, 2016, indicating that a registered process server “Mailed Copy of Summons and Complaint to Expedia Travel” directed to the company's Corporate Secretary. ECF No. 35. Defendant correctly argues that service by certified mail does not meet the requirements of Rule 4(h)(1). Schauf, 2015 WL 5647343 at *4. However, plaintiff attempted in good faith to properly effectuate service by retaining a process server, and further asserts that he is a “handicapped, stroke survivor” with limited capacity. ECF No. 40, 2. The undersigned finds that plaintiff has demonstrated good cause for failure to meet the technical requirements of Fed.R.Civ.P. 4(h)(1). For these same reasons, plaintiff would be severely prejudiced were his Second Amended Complaint dismissed for failure to meet the technical requirements of Rule 4(h)(1). Further, Expedia has received actual notice of plaintiff's suit, and has not presented any argument that it has been or will be prejudiced by plaintiff's failure to ...


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