United States District Court, E.D. California
ORDER GRANTING DEFENDANT JOHN EVERS'S MOTION TO
QUASH SERVICE AND DISMISS CLAIMS AGAINST HIM (DOC. NO.
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
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. 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.)
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.)
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
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.)
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.)
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”).
described further below, the court finds that dismissal of
defendant Evers from this action is appropriate based on
plaintiffs' failure to effect proper service.
Manner of Service
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).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
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