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Singh v. Bunch

United States District Court, E.D. California

July 7, 2017

PRAVEEN SINGH and JOYTESHNA KARAN, Plaintiffs,
v.
KIRK BUNCH et al., Defendants.

          ORDER GRANTING DEFENDANT JOHN EVERS'S MOTION TO QUASH SERVICE AND DISMISS CLAIMS AGAINST HIM (DOC. NO. 49)

         This matter comes before the court on defendant John Evers's motion to quash service and dismiss the complaint. The motions were properly noticed for hearing with service on all counsel and a hearing on these motions was held on July 6, 2017. Attorney Blake P. Loebs specially appeared on behalf of defendant Evers. Counsel for plaintiffs did not appear at the hearing, nor did counsel for any other parties. The court has considered the parties' briefs and oral arguments. For the reasons stated below, the court will grant the defendant Evers's motion.

         BACKGROUND

         Plaintiffs Praveen Singh and Joyteshna Karan commenced this action on April 27, 2015, alleging claims under the Civil Rights Act, 42 U.S.C. § 1983, the civil RICO statute, and several torts pursuant to state law.[1] Plaintiffs allege claims against multiple defendants, including defendant John Evers, an investigator for the Modesto Police Department. On November 18, 2015, the court issued an order continuing the status conference in this case due to the failure of defendants Evers and Frank Navarro to appear in this action. (Doc. No. 24 at 1.) In continuing the status conference, the court further directed plaintiffs to address their efforts to prosecute the case against these defendants and to file proofs of service to avoid dismissal under Rule 4 of the Federal Rules of Civil Procedure. (Id. at 2.) Plaintiffs filed an executed proof of service with respect to defendant Evers on November 30, 2015. (Doc. No. 26.) That document indicates that plaintiffs attempted service of defendant Evers on May 4, 2015, by delivering copies of the summons and plaintiffs' original complaint on a deputy clerk at the Stanislaus County Counsel's Office-not with the City of Modesto, Mr. Evers's employer. (Id.)

         On April 28, 2016, after learning that plaintiffs had named Mr. Evers as a defendant in this case and that plaintiffs were planning to request entry of default against him, defendant Evers's counsel, Mr. Loebs, contacted plaintiffs' counsel, Alejandro Herrera, and pointed out deficiencies with plaintiffs' proof of service. (Declaration of Blake P. Loebs (Doc. No. 49-1) (“Loebs Decl.”) ¶¶ 3-4.) In response, on May 17, 2016, Mr. Herrera acknowledged via email that the proof of service for Mr. Evers “was incorrectly filed and confused with another defendant, ” but insisted that defendant Evers had been properly served. (Id. ¶ 4.) Mr. Herrera then indicated that “[t]his can be corrected and I do intend to correct it.” (Id.)

         Nearly one year later, on May 22, 2017, plaintiffs re-filed a proof of service with respect to defendant Evers. (Doc. No. 45.) That document appears to contain the same proof of service as the one previously filed. (Compare Doc. No. 45, with Doc. No. 26.) That same day, the assigned magistrate judge held a status conference to discuss the status of service on defendants Evers and Navarro. (Doc. No. 48.) Plaintiffs indicated at the status conference that they intended to request an entry of default against these defendants, and accordingly, the court ordered plaintiffs to file such a request, if no appearance is made, by June 1, 2017. To date, plaintiffs have not filed a request for entry of default.

         The next day, on May 23, 2017, Mr. Loebs contacted Mr. Herrera by email, noting that plaintiffs had still not filed a corrected proof of service. (Loebs Decl. ¶ 6.) In response, Mr. Herrera represented for the first time that he did not have a valid proof of service for defendant Evers, but nonetheless maintained that defendant Evers had been properly served “based on information received.” (Loebs Decl. ¶ 6.) Mr. Herrera indicated he would file a “correct” proof of service and seek entry of default against defendant Evers shortly thereafter. (Id.) Mr. Loebs asked Mr. Herrera to make any such proof of service available to defendant Evers at least two weeks prior to seeking entry of default, so that defendant Evers could evaluate what options might be appropriate. (Id. ¶ 7.)

         On May 24, 2017, defendant Evers filed the instant motion to quash service and dismiss the complaint, based on plaintiffs' failure to timely or properly serve copies of the summons and complaint on defendant. (Doc. No. 49.) On June 19, 2017, plaintiffs' counsel filed a declaration in opposition to the motion. (Doc. No. 54.) Therein, Mr. Herrera states that he had concurrently filed a corrected proof of service (see Doc. No. 51) which purportedly renders defendant's motion moot. (Doc. No. 54 ¶¶ 2-3.) The newly filed proof of service indicates only that plaintiffs attempted service on defendant Evers on May 15, 2015, by delivering documents to the “Clerk at Window, ” presumably at the Modesto Police Department. (Doc. No. 51.) On June 29, 2017, defendant Evers filed his reply. (Doc. No. 55.)

         LEGAL STANDARD

         Pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure, 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 Rule 4 of the Federal Rules of Civil Procedure for serving a defendant. Fed.R.Civ.P. 12(b)(5). If the court determines that the plaintiff has not properly served the defendant in accordance with Rule 4, the court has discretion to either dismiss the action for failure to effect proper service, or instead merely quash the ineffective service that has been made on the defendant in order to provide the plaintiff with the opportunity to properly serve the defendant. See Marshall v. Warwick, 155 F.3d 1027, 1032 (8th Cir. 1998) (“[D]ismissal [is not] invariably required where service is ineffective: under such circumstances, the [district] court has discretion to either dismiss the action, or quash service but retain the case”).

         DISCUSSION

         As described further below, the court finds that dismissal of defendant Evers from this action is appropriate based on plaintiffs' failure to effect proper service.

         A. Manner of Service

         Under Rule 4 of the Federal Rules of Civil Procedure, an individual may be served by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1).[2]In California, such methods of service include, in pertinent part, (1) personal delivery to a defendant or authorized agent; or (2) delivery by “substitute service” to someone else at defendant's residence or place of business. Cal. Code Civ. Proc. §§ 415.10, 415.20. Because plaintiffs' proof of service does not indicate that defendant Evers was served personally, the court proceeds to determine whether plaintiffs properly effected substitute service.

         Pursuant to § 415.20(b) of the California Code of Civil Procedure, copies of the summons and complaint may be delivered on someone other than the defendant under certain circumstances, at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a U.S. post office box. To effect this so-called “substitute service, ” however, a plaintiff must first attempt personal service with reasonable diligence. § 415.20(b). Where a defendant challenges this method of service, the plaintiff bears the burden to demonstrate that she made reasonable attempts to serve the defendant personally before resorting to substitute service. Evartt v. Superior Court, 89 Cal.App.3d 795, 801 (1979). After copies of the summons and complaint are ...


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