Marilyn Coulon v. Richard Fairbank of Capital One

Filing 17

(IN CHAMBERS) ORDER TO SHOW CAUSE by Judge Fernando M. Olguin. Response to Order to Show Cause due by 2/5/2018. (vdr)

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

CV 17-5340 FMO (FFMx)

Title

Marilyn Coulon v. Richard Fairbank

Present: The Honorable

Date

January 5, 2018

Fernando M. Olguin, United States District Judge

Vanessa Figueroa

None Present

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None Present

None Present

Proceedings:

(In Chambers) Order to Show Cause Re: Service of Summons and
Complaint

Plaintiff Marilyn Coulon (“plaintiff” or “Coulon”) commenced this action by filing her original
Complaint on July 19, 2017, against Richard Fairbank of Capital One (“defendant” or “Fairbank”).
(See Dkt. 1, Complaint). On October 3, 2017, the court issued an Order to Show Cause Re:
Dismissal Re: Lack of Prosecution, as plaintiff failed to serve the summons and Complaint within
90 days. (See Court’s Order of October 3, 2017, at 1). On October 10, 2017, plaintiff filed her
First Amended Complaint (“FAC”), (Dkt. 10), and a Proof of Service, asserting that defendant was
served with the summons and FAC by priority mail. (See Dkt. 11). The court dismissed plaintiff’s
FAC on November 6, 2017, with leave to amend. (See Dkt. 13, Court’s Order of November 6,
2017, at 4). Plaintiff then filed the Second Amended Complaint (“SAC”) on December 5, 2017.
(See Dkt. 16).
“A federal court does not have jurisdiction over a defendant unless the defendant has been
served properly under Fed.R.Civ.P.4. . . . [W]ithout substantial compliance with Rule 4, neither
actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction.”
Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988)
(internal quotation marks and citations omitted); see S.E.C. v. Ross, 504 F.3d 1130, 1140 (9th Cir.
2007) (“[N]either actual notice nor simply naming the defendant in the complaint will provide
personal jurisdiction without substantial compliance with Rule 4.”) (internal quotation marks
omitted). However, “[s]o long as a party receives sufficient notice of the complaint, Rule 4 is to
be liberally construed to uphold service.” Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d
1132, 1135 (9th Cir. 2009) (internal quotation marks omitted).
Rule 4(e)1 of the Federal Rules of Civil Procedure provides, in relevant part:
Unless federal law provides otherwise, an individual . . . may be served in a
judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts

1

Unless otherwise indicated, all “Rule” references are to the Federal Rules of Civil Procedure.

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

CV 17-5340 FMO (FFMx)

Title

Date

January 5, 2018

Marilyn Coulon v. Richard Fairbank
of general jurisdiction in the state where the district court is located or where
service is made; or
(2) doing any of the following: [¶] (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.

Rule 4(m) provides that “[i]f 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[.]” See Torre v. Brickey, 278 F.3d 917, 919 (9th Cir. 2002)
(per curiam) (stating, under prior 120 day deadline, that Rule 4(m) “provides a 120-day period from
the filing of the complaint within which to serve summons and complaint upon the defendant.”).
This deadline applies irrespective of whether plaintiff serves the original complaint or an amended
complaint. “The filing of an amended complaint does not vitiate the failure to serve the original
complaint within [90] days of filing it under Fed. R. Civ. P. 4(m); a party must make a diligent effort
to serve the original complaint, or some amended version thereof, within [90] days of filing the
original complaint.” U.S. ex rel. Adams v. Wells Fargo Bank Nat. Ass'n, 2013 WL 6506732, *4 (D.
Nev. 2013).
Having reviewed the Proof of Service filed by plaintiff, (see Dkt. 11), it appears that plaintiff
has not substantially complied with Rule 4. For example, the Proof of Service indicates that
plaintiff served the summons and Complaint herself, (see Dkt. 11), but Rule 4(c)(2) requires that
service be effected by a person who is “not a party” to the action. Further, the Proof of Service
indicates that service was attempted by mail, which is insufficient to comply with the methods of
service set forth in Rule 4(e)(2)(A)-(C), i.e., personal service, leaving a copy at defendant’s
“dwelling or usual place of abode with someone of suitable age and discretion who resides
there[,]” or delivering a copy of the summons and Complaint to an “authorized” agent.
In addition, the Proof of Service does not comply with California state law for serving a
summons. See Fed. R. Civ. P. Rule 4(e)(1) (“Unless federal law provides otherwise, an individual
. . . may be served in a judicial district of the United States by . . . following state law for serving
a summons[.]”). The Proof of Service does not demonstrate compliance with California law
governing service by mail. For example, the Proof of Service, which simply asserts that the
“summons, federal minutes, complaint & copies of emails” were sent by “priority 2 day Air” to
defendant, (see Dkt. 11), does not indicate whether defendant acknowledged receipt of the mailing
or provide any other evidence of actual receipt. See Cal. Civ. Proc. Code § 415.30(c) (written
acknowledgment of summons served by mail sufficient for effective service); see also Taylor-Rush
v. Multitech Corp., 217 Cal.App.3d 103, 110-11 (1990), reh'g denied and opinion modified on other
grounds (Feb. 8, 1990) (“Other evidence of actual receipt may also validate the otherwise
defective service, such as, where a defendant’s attorney acknowledges the defendant’s receipt
of the summons. Here, however, no such evidence has been presented.”) (internal citation
omitted). Nor does plaintiff’s attempted service comply with California law governing service by
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 17-5340 FMO (FFMx)

Date

Title

January 5, 2018

Marilyn Coulon v. Richard Fairbank

mail on out-of-state defendants. See Cal. Civ. Proc. Code § 415.40 (summons may be served by
“first-class mail, postage prepaid, requiring a return receipt.”). Finally, although the summons,
(see Dkt. 12, at 1), lists a Utah address for defendant, and Rule 4(e)(1) permits service to be
effected pursuant to law of the state “where service is made[,]” Utah law requires a signed receipt
by the served individual. See Utah R. Civ. P. 4 (d)(2)(C) (“Service by mail or commercial courier
service shall be complete on the date the receipt is signed[.]”).
In short, the court will quash plaintiff’s Proof of Service, as plaintiff has not properly effected
service on defendant Fairbank. See S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th
Cir. 2006) (“The choice between dismissal and quashing service of process is in the district court’s
discretion”) (citation and internal quotation marks omitted). However, given plaintiff’s pro se
status, the court will grant her additional time to serve defendant with the summons and SAC, the
operative complaint. See Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 513 (9th Cir. 2001)
(“Courts have discretion under Rule 4(m), absent a showing of good cause, to extend the time for
service or to dismiss the action without prejudice. . . . [U]nder the terms of the rule, the court’s
discretion is broad.”).
Based on the foregoing, IT IS ORDERED THAT:
1. Plaintiff’s Proof of Service (Dkt. 11) is hereby quashed.
2. Plaintiff shall effect service of process in compliance with Rule 4 no later than February
5, 2018. Plaintiff is advised that the action will be dismissed without prejudice if service of the
summons and the SAC is not effected in compliance with Rule 4. See Fed. R. Civ. P. 4(m);
Patrick v. Saxon Mortg., Inc., 456 F.Appx. 697, 698 (9th Cir. 2011) (district court maintains
discretion to dismiss pro se complaint for failure to serve summons and complaint in timely
manner); Oyama, 253 F.3d at 513 (dismissing case for untimely service of summons and
complaint).

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