United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
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).
Relevant Procedural History
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.
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.
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).
Motion to Dismiss for Insufficient Service of
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.
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.
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
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