Kobe Falco v. Nissan North America Inc et al

Filing 52

ORDER GRANTING DEFENDANTS MOTION TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT PURSUANT TO RULES 12(B)(4) AND 12(B)(5) 28 by Judge Dean D. Pregerson. (lc). Modified on 10/10/2013 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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KOBE FALCO, individually,
and on behalf of a class
similarly situated
individuals,

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Plaintiff,
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v.
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NISSAN NORTH AMERICA INC.,
NISSAN MOTOR CO. LTD, a
Japanese Company,

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Defendants.
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Case No. CV 13-00686 DDP (MANx)
ORDER GRANTING DEFENDANT’S MOTION
TO DISMISS PLAINTIFFS’ FIRST
AMENDED COMPLAINT PURSUANT TO
RULES 12(B)(4) AND 12(B)(5)
[Dkt No. 28]

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Presently before the court is Defendant Nissan Motor Co.

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Ltd.’s (NML) Motion to Dismiss Plaintiffs’ First Amended Complaint

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(FAC) Pursuant to Fed. R. Civ. Proc. 12(b)(5) and 12(b)(4). Having

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reviewed the parties’ submissions and heard oral argument, the

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court now adopts the following order:

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A defendant may move to dismiss a complaint for insufficient

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service of process. Fed. R. Civ. P. (12(b)(5). Effective service of

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process requires service of both a Complaint and a Summons. Fed. R.

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Civ. P. (4)(c)(1)(“A summons must be served with the complaint.”).

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See also Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484

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U.S. 97, 104 (1987) (“[S]ervice of summons is the procedure by

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which a court having venue and jurisdiction of the subject matter

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of the suit asserts jurisdiction over the person of the party

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served.”) (quoting Mississippi Publishing Corp. v. Murphree, 326

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U.S. 438, 444–445 (1946)).

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Plaintiffs concede that on June 27, 2013 they served Defendant

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NML (purportedly via substitute service on an executive of NML’s

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subsidiary, Defendant Nissan North America) with a copy of their

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First Amended Complaint, but inadvertently failed to serve a

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Summons, instead providing only a copy of the FAC. (Opp at 2:21-

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22.) Because service of process was not effected in accordance with

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the law, the court may not exercise jurisdiction over NML.

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Plaintiffs’ claim against NML is therefore dismissed without

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prejudice.

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The court is aware that Plaintiffs have since attempted to

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cure the defective service of process, but that NML has moved to

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dismiss this second attempt under Rule 12(b)(5) and that a hearing

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is set as to this motion for November 18, 2013.

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IT IS SO ORDERED.

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Dated: October 10, 2013
DEAN D. PREGERSON
United States District Judge

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