United States District Court, S.D. California
DR. RACQUEL S. BOVIER, c/o EPIPHANY ONEPOINTE TELETHERAPY & ASSOC., LLC, Plaintiff,
BRIDGEPOINT EDUCATION/ASHFORD UNIVERSITY, BRIDGEPOINT UNIVERSITY GOVERNING BOARD OF REGENTS, DR. CRAIG MAXWELL, DR. ANTHONY “TONY” FARRELL, DR. DENISE MAXWELL, MR. JOHN GOODISON, DR. IRIS LAFFERTY, DR. TAMECCA FITZPATRICK, DR. JUDY DONOVAN, DR. JACKIE KYGER, MS. HEATHER MASON, DR. ALAN BELCHER, MR. ARMONDO DOMINGUEZ & ASSOC., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [ECF
GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE
the Court is Defendants Bridgepoint Education, Inc.
(“Bridgepoint”) and Anthony Farrell, Denise
Maxwell, Iris Lafferty, Tamecca Fitzpatrick, Judy Donovan,
Jackie Kyger, Heather Mason, Alan Belcher, John Goodison, and
Armando Dominguez (the “Individual Defendants”)
Motion to Dismiss Plaintiff's First Amended Complaint, or
Alternatively Quash Service of Summons and the First Amended
Complaint. Dkt. No. 35. Plaintiff did not respond to
Defendants' Motion pursuant to the briefing schedule
issued in this Court on January 2, 2018. See Dkt.
No. 36 (requiring response by January 19, 2018).
October 30, 2017, the Court previously granted
Defendants' Motion to Quash Service of Summons. Dkt. No.
21. The Court allowed Plaintiff to properly re-serve
Defendants “within 30 days” of the docketing of
the order. Id. at 6.
move to dismiss Plaintiff's First Amended Complaint under
Federal Rule of Civil Procedure 12(b)(5) on two grounds: (1)
Untimely Service of Process and (2) Insufficient Service of
Process. Mot. at 4.
Untimely Service of Process
Court previously directed Plaintiff to properly serve
Defendants within 30 days of the docketing of its October 30,
2017 order. Accordingly, Plaintiff had until Wednesday,
November 29, 2017 to re-serve Defendants. Plaintiff's
process server did not serve Defendants until December 1,
2017, two days after the court-imposed deadline. Grindle
Decl. ¶ 3. Under Federal Rule of Procedure 4(m), the
Court has discretion, “absent a showing of good cause,
” to “extend the time for service or to dismiss
the action without prejudice. In re Sheehan, 253
F.3d 507, 513 (9th Cir. 2001). Because plaintiff has not
responded to Defendant's motion, the Court cannot find
that good cause exists to extend the time for service.
Accordingly, the Court will GRANT Defendant's motion to
dismiss the action without prejudice.
Insufficient Service of Process
defendant challenges service of process, the Plaintiff bears
the burden of establishing the validity of service of
process. Brockmeyer v. May, 383 F.3d 798, 801 (9th
Cir. 2004). The Court has discretion to dismiss the action
for failure to effect service or quash the defective service
and permit re-service. Jones v. Auto Club of S. Cal,
26 F. App'x 740, 742 (9th Cir. 2002).
has failed to effect adequate personal service on Defendant
Bridgepoint. Specifically, Plaintiff's process server
served Christine Grindle, a corporate paralegal at Defendant
Bridgepoint Education. Grindle Decl. ¶ 3. Ms. Grindle is
neither an officer, managing agent, or general agent of
Bridgepoint, nor is she authorized by appointment or by law
to receive service of process for Bridgepoint. See
Grindle Decl. ¶ 6; Fed.R.Civ.P. 4(h)(1)(B) (service may
be received by “an officer, a managing or general
agent, or any other agent authorized by appointment or by law
to receive service of process”). Further, Ms. Grindle
did not engage in actions such that the process server could
have presumed her authority to accept service. See
Grindle Decl. ¶ 7 (“I did not tell the process
server I had authority to accept service of process on behalf
of any of the Defendants named in this matter.”).
has further failed to effect service under Rule 4(h)(1)(A)
which allows for service “following state law for
serving a summons.” Service to Ms. Grindle, a
paralegal, does not meet the requirement that personal
service be made on the “President, chief executive
officer, or other head of the corporation, a vice president,
a secretary or assistant secretary, a general manager, or a
person authorized by the corporation to receive service of
process.” Cal. Civ. Proc. Code § 416.10(b). She
has further failed to accomplish “substitute
service” by failing to (1) show that Ms. Grindle was
“in charge” of the office; and (2) mail a copy of
the summonses and first amended complaint to Bridgepoint.
See Cal. Civ. P. Code. § 415.20(a).
Plaintiff failed to effect service on the individual
Defendants under Rule 4(e)(2) because the process server
delivered the complaints solely to Ms. Grindle, instead of
the individual Defendants' dwellings or usual places of
abode. Moreover, Plaintiff failed to effect service on the
individual Defendants under Rule 4(e)(1) by failing to
exercise “reasonable diligence” in attempting
personal service before resorting to substitute service at an
individual's place of business pursuant to California
Civ. Proc. Code § 415.20(b). Rodriguez v. Man Min
Cho, 236 Cal.App.4th 742, 751 (2015) (“A plaintiff
may serve individual defendants through substitute service
when they cannot be personally served with reasonable
Failure to Respond
the Court observes that Plaintiff's failure to respond is
an independent basis to grant Defendants' unopposed
motion. The Ninth Circuit has held a district
court may properly grant an unopposed motion pursuant to a
local rule where the local rule permits, but does not
require, the granting of a motion for failure to respond.
See generally Ghazali v. Moran, 46 F.3d 52, 53 (9th
Cir. 1995). Local Civil Rule 7.1(f)(3)(c) provides that
“[i]f an opposing party fails to file papers in the
manner required by Local Rule 7.1(e)(2), that failure may
constitute a consent to the granting of that motion or other
ruling by the court.” As such, the Court has the option
of granting Defendant's motion on the basis of
Plaintiffs' failure to respond, and it chooses to do so.
While recognizing that public policy favors disposition of
cases on the merits, a “case cannot move forward toward
resolution on the merits when the plaintiff fails to defend
themselves against a Rule 12(b)(5) motion.”