United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN
DISTRICT JUDGE TO ACTION, FINDINGS AND RECOMMENDATIONS TO
DENY DEFENDANT'S MOTION TO DISMISS AND GRANT
DEFENDANT'S ALTERNATIVE MOTION TO QUASH SERVICE (ECF NO.
23)
BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE.
Plaintiff
Armando Ramirez is a state prisoner proceeding pro
se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
Currently
before the Court is Defendant Victor Kitt's motion to
dismiss, or, in the alternative, to quash service pursuant to
Federal Rule of Civil Procedure 12(b)(5), filed on July 24,
2019. (ECF No. 23.)
I.
Introduction
Plaintiff
initiated this action on July 17, 2017. (ECF No. 1.)
On May
22, 2019, the Court screened Plaintiff's first amended
complaint and determined that Plaintiff had stated a
cognizable claim against Defendant Kitt for deliberate
indifference to serious medical needs in violation of the
Eighth Amendment. (ECF No. 20.) In the same order, the Court
ordered that service be initiated against Defendant Kitt and,
due to Plaintiff's in forma pauperis status, the
Court directed Plaintiff to provide the information necessary
for the United States Marshal to serve process on Defendant
Kitt. (Id.)
On June
21, 2019, the Court issued an order directing service on
Defendant Kitt by the U.S. Marshals Service pursuant to the
information provided to the Court by Plaintiff. (ECF No. 21.)
On July
8, 2019, the U.S. Marshals Service filed a USM-285
“Process Receipt and Return” form, stating that
the U.S. Marshal personally served “Victor Kitt, M.D.
c/o Dignity Health Mercy Hospital Bakersfield” at
“2215 Truxtun Ave. Bakersfield, CA 93301” by
delivering a copy of the summons and first amended complaint
to “Darryl Coleman, HR” at 1:00 p.m. on July 3,
2019. (ECF No. 22.)
As
noted above, Defendant Kitt filed a motion to dismiss or, in
the alternative, quash service pursuant to Federal Rule of
Civil Procedure 12(b)(5) on July 24, 2019. (ECF No. 23.)
Plaintiff filed an opposition to Defendant's motion to
dismiss or quash pursuant to the prison mailbox rule on
August 12, 2019, which was docketed on August 23, 2019. (ECF
No. 25.) Defendant filed a reply on August 30, 2019. (ECF No.
26.) Accordingly, Defendant's motion to dismiss or quash
is submitted for decision without oral argument. Local Rule
230(1).
II.
Legal Standard
Federal
Rule of Civil Procedure 12(b)(5) allows a defendant to move
to dismiss an action based on insufficient service of
process. If service is insufficient, as defined by Federal
Rule of Civil Procedure 4, “the district court has
discretion to dismiss an action or to quash service.”
S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288,
1293 (9th Cir. 2006). “Once service is challenged,
plaintiffs bear the burden of establishing that service was
valid under Rule 4.” Brockmeyer v. May, 383
F.3d 798, 801 (9th Cir. 2004). “Rule 4 is a flexible
rule that should be liberally construed to uphold service so
long as a party receives sufficient notice of the
complaint.” Chan v. Society Expeditions, 39
F.3d 1398, 1404 (9th Cir. 1994). However, “[n]either
actual notice, nor simply naming the person in the caption of
the complaint, will subject defendants to personal
jurisdiction if service was not made in substantial
compliance with Rule 4.” Jackson v. Hayakawa,
682 F.2d 1344, 1347 (9th Cir. 1982) (internal citations
omitted).
III.
Discussion
Federal
Rule of Civil Procedure 4(e) provides that “an
individual … may be served in a judicial district of
the United States by:” (a) “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;” (b) by
“delivering a copy of the summons and …
complaint to the individual personally;” (c) by
“leaving a copy of [the summons and complaint] at the
individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides
there;” or (d) by “delivering a copy of each to
an agent authorized by appointment or by law to receive
service of process.” Fed.R.Civ.P. 4(e).
Here,
Defendant Kitt moves to dismiss the action, or quash service
against him, on the ground that the service of summons and
Plaintiff's first amended complaint was insufficient
because the manner of service in this case does not comply
with the requirements for service set forth in Rule 4(e).
Specifically, Defendant contends that the manner of service
in this case does not comply with Rule 4(e)(1) or (e)(2)(C)
because, although the summons and first amended complaint
were served on Defendant “c/o Dignity Health Mercy
Hospital, ” Defendant is not an employee of Dignity
Health dba Mercy Hospitals of Bakersfield and Dignity Health
...