William M. Mentzer v. J. Vaikutyte et al

Filing 21

ORDER TO SHOW CAUSE WHY IMPROPERLY SERVED DEFENDANT SHOULD NOT BE DISMISSED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(m) by Magistrate Judge Suzanne H. Segal. Plaintiff is ORDERED TO SHOW CAUSE within ten (10) days of the date of this Order why h is action should not be dismissed for Plaintiff's failure to effect service of the SAC on Defendant. If Plaintiff no longer wishes to pursue his claim, he may request a voluntary dismissal of this action in its entirety pursuant to Federal Rule of Civil Procedure 41(a). A Notice of Dismissal form is attached for Plaintiff's convenience. (See document for further details). (Attachments: # 1 Notice of Dismissal Form) (mr)

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

CV 16-1687 DMG (SS)

Title:

William M. Mentzer v. J. Vaikutyte, et al.

DOCKET ENTRY:

Date: August 22, 2017
Page 1 of 4

ORDER TO SHOW CAUSE WHY IMPROPERLY SERVED
DEFENDANT SHOULD NOT BE DISMISSED PURSUANT
TO FEDERAL RULE OF CIVIL PROCEDURE 4(m)

PRESENT:
HONORABLE SUZANNE H. SEGAL, UNITED STATES MAGISTRATE JUDGE
_Marlene Ramirez_

_______None_______

__None__

Deputy Clerk

Court Reporter/Recorder

Tape No.

ATTORNEYS PRESENT FOR PLAINTIFF:

ATTORNEYS PRESENT FOR DEFENDANT:

None Present

None Present

PROCEEDINGS: (IN CHAMBERS)
On March 11, 2016, William M. Mentzer (“Plaintiff”), a California state prisoner at
California State Prison, Los Angeles County in Lancaster (“CSP Lancaster”), proceeding
pro se but not with in forma pauperis status filed a civil rights complaint (“Complaint,” Dkt.
No. 1) pursuant to 42 U.S.C. §1983. On August 15, 2016, Plaintiff filed the operative
complaint (“Second Amended Complaint” or “SAC,” Dkt. No. 9), bringing a claim against
Tawfik Hadaya (“Defendant”) in both his official and individual capacity.
On March 30, 2017, the Court granted a thirty-day extension for Plaintiff to serve
Defendant with the SAC. (Dkt. No. 18). Plaintiff hired registered process server, Patricia
Ladd, to serve the complaint. (See “Proof of Service,” Dkt. No. 20). The Proof of Service
reflects that the process server unsuccessfully attempted to reach Defendant at his place of

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

CV 16-1687 DMG (SS)

Title:

Date: August 22, 2017
Page 2 of 4

William M. Mentzer v. J. Vaikutyte, et al.

employment. The process server “left documents with [Defendant’s] receptionist in the
surgical center” on April 21, 2017. (Id.).
As discussed below, it appears that the Second Amended Complaint may be subject
to dismissal for failure to effect service of the SAC on Defendant. Pursuant to Federal Rule
of Civil Procedure 4(e), service of a summons and complaint in a federal case may be
accomplished on a defendant in his individual capacity by “delivering a copy of the
summons and of the complaint to the individual personally, or by leaving copies thereof at
the individual’s dwelling house . . . or by delivering a copy of the summons and of the
complaint to an agent authorized . . . to receive service.” Fed. R. Civ. P. 4(e)(2); see also
Gerritsen v. Consulado General De Mexico, 989 F.2d 340, 344 (9th Cir. 1993) (holding that
personal service on defendant is required in a civil rights case). Merely leaving the
complaint and summons with a co-worker at defendant’s place of business is insufficient to
satisfy the Federal Rules of Civil Procedure. Gerritsen, 989 F.2d at 344.
Service of a summons in a federal case can also be accomplished “pursuant to the
law of the state.” Fed. R. Civ. P. 4(e)(1). If serving the defendant personally cannot be
accomplished “with reasonable diligence,” then California Civil Code of Procedure
authorizes “substitute service” allowing the plaintiff to serve the defendant by leaving the
complaint and summons at the defendant’s residence or place of business and also mailing
another copy of the complaint and summons to the defendant at the place where the service
was made. See Cal. Civ. Proc. Code § 415.20.
Here, Plaintiff brought a civil rights claim for monetary damages against Defendant,
which can only be pursued against Defendant in his capacity as an individual. Therefore,
sufficient service requires personal service on Defendant or substitute service pursuant to
state law.
It does not appear that Plaintiff has accomplished personal service on Defendant or
substitute service. The process server did not serve the SAC on Defendant personally and

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

CV 16-1687 DMG (SS)

Title:

Date: August 22, 2017
Page 3 of 4

William M. Mentzer v. J. Vaikutyte, et al.

did not leave the complaint and summons at Defendant’s abode. The process server merely
left the SAC with Defendant’s receptionist at Defendant’s place of business. Plaintiff has
not provided any evidence that Defendant authorized his receptionist to accept service on
his behalf. Further, Plaintiff has not provided any evidence showing that there was
“reasonable diligence” to personally serve Defendant nor that a copy of the SAC was mailed
to Defendant at the correct address. Accordingly, it appears that Plaintiff has not properly
served Defendant in his individual capacity under either the Federal Rules of Civil
Procedure or California Code of Civil Procedure.
Federal Rule of Civil Procedure 4(m) provides in relevant part that if a “defendant is
not served within 90 days after the complaint is filed, the court -- on motion or on its own
after notice to the plaintiff -- must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m). On
March 30, 2017, the Court granted an extension and ordered that Plaintiff must accomplish
service of the Second Amended Complaint within thirty days. Therefore, the deadline to
accomplish service in this matter expired on April 29, 2017. As stated above, it appears
Plaintiff did not properly serve Defendant prior to the Court’s deadline.
Accordingly, Plaintiff is ORDERED TO SHOW CAUSE within ten (10) days of the
date of this Order why his action should not be dismissed for Plaintiff’s failure to effect
service of the SAC on Defendant. Plaintiff may satisfy this Order by filing a proof of service
reflecting that Defendant has been properly served or a declaration explaining under oath
why Plaintiff is unable to do so. The Court advises Plaintiff that if it finds that, despite
Plaintiff’s efforts, Defendant has not been properly served, it is likely that the Court will
recommend dismissal of this action.
Plaintiff is explicitly cautioned that the failure to respond to this Order by the
Court’s deadline will result in a recommendation that the claim against Defendant be
dismissed without prejudice pursuant to Rule 4(m). If Plaintiff no longer wishes to
pursue his claim, he may request a voluntary dismissal of this action in its entirety

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

CV 16-1687 DMG (SS)

Title:

Date: August 22, 2017
Page 4 of 4

William M. Mentzer v. J. Vaikutyte, et al.

pursuant to Federal Rule of Civil Procedure 41(a). A Notice of Dismissal form is
attached for Plaintiff’s convenience.
The Clerk of the Court is directed to serve a copy of this Order on Plaintiff.
IT IS SO ORDERED.
MINUTES FORM
CIVIL-GEN

Initials of Deputy Clerk mr