Ramirez v. Kitt

          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 ...