United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
action came before the court on June 30, 2017, for hearing of
defendants' motions to dismiss. (ECF Nos. 55 & 56.) Also
addressed at the June 30, 2017 hearing was plaintiff's
May 15, 2017 motion to include new IDEA violations. (ECF No.
54.) Plaintiff Laura Bratset appeared in person on her own
behalf. Attorney Marlon Wadlington appeared telephonically on
behalf of defendant Davis Joint Unified School District
(“DJUSD”). Attorney David Mishook appeared
telephonically on behalf of defendant Winters Joint Unified
School District (“WJUSD”).
Plaintiff's Motion to Include Additional IDEA
May 15, 2017 motion to include additional IDEA violations in
the second amended complaint was not noticed for a hearing
before the undersigned as required under Local Rule 230(b)
which states that “all motions shall be noticed on the
motion calendar of the assigned Judge or Magistrate
Judge.” Moreover, Local Rule 220 requires that every
pleading be “complete in itself without reference to
the prior or superseded pleading.”
regard, plaintiff cannot simply add new violations to her
second amended complaint in a separate document. Instead,
plaintiff would have to amend the second amended complaint.
To amend the second amended complaint, plaintiff would need
to comply with Rule 15 of the Federal Rules of Civil
Procedure (“Rule 15”). Under Rule 15, a party
“may amend its pleading once as a matter of
course” if they do so “21 days after service of a
motion under Rule 12(b).” Fed.R.Civ.P. 15(a)(1). A
party may also amend its pleading “with the opposing
party's written consent or the court's leave.”
if plaintiff wishes to add new allegations to the second
amended complaint, plaintiff must either obtain
defendants' consent to file a third amended complaint or
file a motion seeking leave to file a third amended
complaint. That motion should be noticed for hearing before
the undersigned in compliance with Local Rule 230 and should
include a copy of plaintiff's proposed third amended
complaint pursuant to Local Rule 137(c). Accordingly,
plaintiff's motion to include new IDEA violations will be
DJUSD's Motion to Dismiss
respect to defendant DJUSD's motion to dismiss, DJUSD
seeks dismissal pursuant to Rule 12(b)(5) for plaintiff's
failure to properly serve process on DJUSD. (DJUSD's MTD
(ECF No. 56) at 10.) Pursuant to Rule 12(b)(5), a defendant
may move to dismiss the action where the plaintiff has failed
to effect proper service of process in compliance with the
requirements set forth under Federal Rule of Civil Procedure
4 for serving a defendant. Fed.R.Civ.P. 12(b)(5). When a
defendant challenges service, the plaintiff bears the burden
of establishing the validity of service as governed by Rule 4
of the Federal Rules of Civil Procedure. See Brockmeyer
v. May, 383 F.3d 798, 801 (9th Cir. 2004).
plaintiff has provided a signed return of service. (ECF No.
53.) “‘A signed return of service constitutes
prima facie evidence of valid service which can be overcome
only by strong and convincing evidence.'”
S.E.C. v. Internet Solutions for Business Inc., 509
F.3d 1161, 1166 (9th Cir. 2007) (quoting O'Brien v.
R.J. O'Brien & Associates, Inc., 998 F.2d 1394,
1398 (7th Cir. 1993)). “The burden of producing strong
and convincing evidence to rebut this presumption cannot be
met by a mere conclusory denial of service.”
Freeman v. ABC Legal Services Inc., 827 F.Supp.2d
1065, 1075 (N.D. Cal. 2011).
DJUSD has provided a declaration from Pamela Gilleste, the
individual plaintiff served, establishing the Gilleste is a
secretary for the DJUSD in the special education department
and is “not authorized to accept service on behalf of
DJUSD as a secretary in the special education
department.” (Gilleste Decl. (ECF No. 56-1) at 2.) Rule
4(j) of the Federal Rules of Civil Procedure provides that a
state may be sued by: (A) delivering a copy of the summons
and complaint to the CEO; or (2) by any manner prescribed by
California Code of Civil Procedure § 416.50 provides
(a) A summons may be served on a public entity by delivering
a copy of the summons and of the complaint to the clerk,
secretary, president, presiding officer, or other head of its
(b) As used in this section, “public entity”
includes the state and any office, department, division,
bureau, board, commission, or agency of the state, the
Regents of the University of California, a county, city,
district, public authority, public agency, and any other
political subdivision or public corporation in this state.
while California Code of Civil Procedure provides for
substitute service (e.g., Cal. Code Civ. P.
§§ 415.20 & 415.30), here there is no
indication that DJUSD was also served ...