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Pimental v. Rivera

United States District Court, E.D. California

January 14, 2020

CESAR PIMENTEL, Plaintiff,
v.
HANFORD POLICE OFFICERS ALFRED RIVERA and MARK CARRILLO, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO QUASH SERVICE ORDER CONTINUING SCHEDULING CONFERENCE (DOC. 14)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On August 9, 2019, Plaintiff, proceeding in forma pauperis, filed this case against Defendants pursuant to 42 U.S.C. § 1983. (Doc. 1.) The Court found Plaintiff's complaint stated a cognizable claim for failure to provide medical assistance, (see Docs. 4, 5, 6), and directed service of the complaint by the United States Marshal, (Docs. 7, 9). On October 25, 2019, proof of service was filed on the docket. (Doc. 10.)

         Defendants filed a motion to quash service on December 30, 2019. (Doc. 14.) Plaintiff filed an opposition on January 10, 2020. (Doc. 15.) For the reasons stated below, Defendants' motion is granted, and service is quashed.

         II. DISCUSSION

         A. Legal Standards

         Rule 4 of the Federal Rules of Civil Procedure provides that proper service can be made on an individual defendant by: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) 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)(2). Proper service can also be made pursuant to the applicable law of the state in which the case was filed or in which service is effected. See Fed. R. Civ. P. 4(e)(1).

         Under California law, service may be made on an individual defendant by personally delivering a copy of the summons and complaint to the defendant or by substitute service under Cal. Civ. Code. § 415, which states, in relevant part:

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address . . . in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address . . . at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.

Cal. Civ. Code § 415.20.

         When service is challenged, the plaintiff bears the burden of establishing that service was valid under Rule 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). “Normally the process server's return will provide a prima facie case as to the facts of service, but if the defendant introduces uncontroverted affidavits in support of a motion to quash service, the content of those affidavits will be deemed admitted for purposes of the motion.” O'Dell v. Inyo County Sheriff's Dep., No. CV-F-06-658 OWW/SMS, 2006 WL 3834397, at *2 (E.D. Cal. Dec. 26, 2006) (quoting Wright & Miller, Federal Practice and Procedure: Civil 3rd § 1353, pp. 343-344).

         “Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint.” United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984). However, there still must be “substantial compliance” with Rule 4, otherwise, “neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction.” Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988) (citation omitted). If service was insufficient, the Court may either dismiss the action or retain the action and quash service of process. Stevens v. Sec. Pac. Nat'l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976).

         B. Analysis

         Here, the return of service states that on October 25, 2019, service was effected on Defendants at the Hanford Police Department, 425 N. Irwin Street, Hanford, California 93230, by delivering a copy of the summons and complaint to “A. Carrillo, Records Assistant, ” who “accepted service” on behalf of Defendants. (See Doc. 10.) There is no indication that personal service on Defendants was attempted or that the summons and complaint were mailed to Defendant's place of business. Defendants' motion attaches ...


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