United States District Court, E.D. California
ORDER GRANTING DEFENDANTS' MOTION TO QUASH
SERVICE ORDER CONTINUING SCHEDULING CONFERENCE (DOC.
K. OBERTO UNITED STATES MAGISTRATE JUDGE
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.)
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.
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).
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.
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).
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).
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 ...