Pamela Tinky Mnyandu v. County of Los Angeles et al

Filing 134

MINUTES (IN CHAMBERS) ORDER GRANTING DEFENDANT JOHN MCLAUGHLIN'S MOTION TO QUASH SERVICE by Magistrate Judge Frederick F. Mumm: Plaintiff does not state that a copy of the summons and complaint was left with anyone over the age of 18 years at defendant's dwelling house, usual place of abode, usual place of business, or usual mailing address. Therefore, substituted service was not properly effected. Accordingly, the motion to quash service of process is GRANTED. The motion to dismiss the complaint is DENIED as moot. *See Order for details.* (es)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-6485 DSF (FFM)

Title

PAMELA TINKY MNYANDU v. COUNTY OF LOS ANGELES, et al.

Present: The
Honorable

Date

August 5, 2015

Frederick F. Mumm, United States Magistrate Judge

James Munoz

N/A

N/A

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiff:

Attorneys Present for Defendants:

None present

None present

Proceedings:

(IN CHAMBERS) ORDER GRANTING DEFENDANT JOHN
MCLAUGHLIN’S MOTION TO QUASH SERVICE

On April 24, 2015, defendant John McLaughlin filed a Notice of Motion and
Motion to Quash Service and to Dismiss First Amended Complaint. Defendant
McLaughlin argues that plaintiff did not properly effect substituted service of process on
him. Defendant also complains that plaintiff did not use a registered process server in
attempting to serve him. Plaintiff filed an opposition which suggests that defendant has
been trying to evade service of process. Plaintiff also filed a declaration and amended
declaration of the process server in an attempt to demonstrate that service has been
effected properly. On May 6, 2015, defendant McLaughlin filed a reply to plaintiff’s
opposition.
After considering the arguments made by the parties and after reviewing the proof
of service and declarations filed by plaintiff, the Court concludes that plaintiff has failed
to demonstrate that she served defendant McLaughlin with the Summons and Complaint.
First, there is no requirement that plaintiff use a registered process server. The Federal
Rules require that the server be over 18 years of age and not a party to the action.
Therefore, defendant’s objection to the process server is overruled. Second, substituted
service pursuant to California law is acceptable in this Court. Thus, had plaintiff properly
complied with California Code of Civil Procedure section 415.2(b) the Court would deny
defendant’s motion. In this regard, C.C.P. § 415.2 (b) provides:
If a copy of the summons and complaint cannot with reasonable
diligence be personally delivered to the person to be served, as specified in
Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-6485 DSF (FFM)

Date

August 5, 2015

Title

PAMELA TINKY MNYANDU v. COUNTY OF LOS ANGELES, et al.

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 other than a United States Postal Service post office box, 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 other
than a United States Postal Service post office box, 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. Service of a summons in this manner is deemed
complete on the 10th day after the mailing.
Plaintiff does not state that a copy of the summons and complaint was left with
anyone over the age of 18 years at defendant’s dwelling house, usual place of abode,
usual place of business, or usual mailing address. Therefore, substituted service was not
properly effected. Accordingly, the motion to quash service of process is GRANTED.
The motion to dismiss the complaint is DENIED as moot.
Defendant argues that plaintiff’s last day to serve him expired on April 17, 2015.
The Court notes plaintiff’s continuing attempts to serve defendant and plaintiff’s
allegations that defendant, although present, refused to answer the door to be served on
numerous occasions. Given plaintiff’s attempts to serve defendant McLaughlin and the
assertions that defendant is evading service, the Court will extend the time limit with
respect to serving defendant McLaughlin.
The Court has granted with leave to amend the motions to dismiss the First
Amended Complaint of various defendants, but has stayed the filing of a Second
Amended Complaint until all of the motions to dismiss have been resolved. The last
remaining motions to dismiss are those of defendants Joan Schneider and Mauricio
Arocha. The Court is in the process of issuing a Report and Recommendation that those
two defendants be dismissed without leave to amend. Therefore, the Court will order that
the Second Amended Complaint be filed within 20 days of the order granting the motions
to dismiss of these two defendants (assuming the District Judge accepts the
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-6485 DSF (FFM)

Date

August 5, 2015

Title

PAMELA TINKY MNYANDU v. COUNTY OF LOS ANGELES, et al.

recommendation to grant the motions to dismiss either with or without prejudice). The
Court will grant plaintiff an additional 45 days from the filing of the Second Amended
Complaint to serve defendant McLaughlin with the Second Amended Complaint.
IT IS SO ORDERED.

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