Singh et al v. Bunch et al
Filing
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ORDER Granting 63 Motion to Set Aside Default, Quash Service, and Dismiss Defendant Navarro signed by District Judge Dale A. Drozd on 10/24/2017. Frank Navarro terminated.(Flores, E)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PRAVEEN SINGH and JOYTESHNA
KARAN,
Plaintiffs,
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ORDER GRANTING MOTION TO SET
ASIDE DEFAULT, QUASH SERVICE, AND
DISMISS DEFENDANT NAVARRO
v.
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No. 1:15-cv-00646-DAD-BAM
KIRK BUNCH, FRANK NAVARRO,
DAVID HARRIS, BIRGIT FLADAGER,
COUNTY OF STANISLAUS,
STANISLAUS COUNTY SHERIFF’S
DEPARTMENT, and ADAM
CHRISTIANSON,
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(Doc. No. 63)
Defendants.
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This matter comes before the court on defendant Frank Navarro’s motion to quash service
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of process, filed September 12, 2017. (Doc. No. 63.) The motion was noticed for hearing on
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September 12, 2017. Attorney John Whitefleet and Bradley Swingle appeared telephonically on
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behalf of defendant Navarro. Plaintiff’s counsel, attorney Alejandro Herrera, appeared
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telephonically at the hearing, but failed to file a written opposition to the pending motion.
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Considering the arguments and evidence presented to the court, the court will grant the pending
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motion, set aside the default, quash service of process, and dismiss defendant Navarro from this
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case.
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BACKGROUND
This case concerns allegations of abusive and unlawful law enforcement actions by the
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defendants against plaintiffs in connection with investigating the homicide of Korey Kauffman.
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Details of the allegations of the complaint are set forth in the court’s prior orders and will not be
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recounted here. (See Doc. Nos. 40, 58.) Defendant Navarro was an officer employed by the
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Turlock Police Department. Pertinent to the current motion, a summons was issued by the court
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naming defendant Navarro alongside defendants Fladager and Harris on April 28, 2015. (Doc.
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No. 5.) A return of service was filed by plaintiff on November 30, 2015, indicating defendant
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Navarro was served by leaving the summons and a copy of the complaint with Kelly Hines of the
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Turlock Police Department. (Doc. No. 25.) Defendant Navarro declares in relation to the
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pending motion to quash that he recalls receiving a summons in May 2015 in his cubicle’s
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mailbox concerning this lawsuit, but disregarded it since the summons was addressed only to Kirk
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Bunch, John Evers, and the County of Stanislaus, and not to him. (Doc. No. 65 at ¶ 2.) Indeed,
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the summons defendant Navarro attaches as an exhibit to his declaration—the one he received
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from plaintiff—is addressed to those three defendants and does not list Navarro’s name. (Id. at
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5.) Defendant Navarro’s counsel avers he contacted plaintiffs’ counsel by telephone and e-mail
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on August 14, 2017 and August 24, 2017 concerning the error in service and received no
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response. (Doc. No. 66 at ¶ 3.)
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A clerk’s entry of default was entered against defendant Navarro on August 11, 2017, at
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plaintiff’s request. (Doc. Nos. 60, 61.) Defendant Navarro moved to set aside the entry of
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default, quash service of process, and dismiss the complaint against him on September 12, 2017.
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(Doc. No. 64.) As noted above, plaintiffs filed no written opposition to that motion. Defendant
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Navarro filed a reply on October 10, 2017. (Doc. No. 68.)
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LEGAL STANDARDS
Pursuant to the Federal Rules of Civil Procedure, a district court “may set aside an entry
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of default for good cause.” Fed. R. Civ. P. 55(c). In determining whether good cause exists to set
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aside the entry of default, the court must consider three factors: (1) whether the defendant
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engaged in culpable conduct that led to the default, (2) whether the defendant had a meritorious
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defense, and (3) whether setting aside the entry of default would result in prejudice to the
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plaintiff. Franchise Holding II, LLC. v. Huntington Restaurants Grp., Inc., 375 F.3d 922, 925–26
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(9th Cir. 2004); accord United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d
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1085, 1091 (9th Cir. 2010); see also Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984). “[T]he
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burden on a party seeking to vacate a default judgment is not extraordinarily heavy.” TCI Grp.
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Life Ins. Plan v. Knoebber, 244 F.3d 691, 700 (9th Cir. 2001) overruled on other grounds by
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Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141 (2001). While the decision of whether to set
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aside an entry of default is committed to the sound discretion of the district courts, this discretion
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“is especially broad where, as here, it is entry of default that is being set aside, rather than a
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default judgment.” Mendoza v. Wight Vineyard Mgmt., 783 F.2d 941, 945 (9th Cir. 1986); see
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also O’Connor v. State of Nevada, 27 F.3d 357, 364 (9th Cir. 1994).
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Additionally, a defendant may move to dismiss an action where the plaintiff has failed to
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effect proper service of process in compliance with the requirements set forth under Rule 4 of the
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Federal Rules of Civil Procedure for serving a defendant. Fed. R. Civ. P. 12(b)(5). If the court
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determines that the plaintiff has not properly served the defendant in accordance with the
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requirements of Rule 4, the court has discretion to either dismiss the action for failure to effect
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proper service, or merely quash the ineffective service that has been made on the defendant in
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order to provide the plaintiff with the opportunity to properly serve the defendant. Marshall v.
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Warwick, 155 F.3d 1027, 1032 (8th Cir. 1998) (“[D]ismissal [is not] invariably required where
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service is ineffective: under such circumstances, the [district] court has discretion to either
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dismiss the action, or quash service but retain the case.”).
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ANALYSIS
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A.
Motion to Set Aside Entry of Default
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Defendant Navarro requests the court set aside the entry of default because he did not
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know he was named as a defendant in this suit, he has a meritorious defense to the suit insofar as
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he believes it fails to state a cognizable claim against him, and plaintiffs would not be prejudiced
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by setting aside the default. (Doc. No. 64 at 5–7.)
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“If a defendant ‘has received actual or constructive notice of the filing of the action and
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failed to answer,’ [his] conduct is culpable.” Franchise Holding II, LLC, 375 F.3d at 926
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(quoting Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 690 (9th
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Cir. 1988)). However, “to treat a failure to answer as culpable, the movant must have acted with
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bad faith, such as an ‘intention to take advantage of the opposing party, interfere with judicial
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decision[-]making, or otherwise manipulate the legal process.’” Mesle, 615 F.3d at 1092 (quoting
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TCI Grp., 244 F.3d at 697). Here, defendant Navarro explains that he received the summons, but
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because it did not list his name, he “did not believe it was directed to [his] attention.” (Doc. No.
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65 at ¶ 2.) This explanation is only marginally plausible. Defendant Navarro notes in the same
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declaration that he received a copy of both the summons and the complaint. (Id.) The complaint
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clearly lists defendant Navarro as the second named defendant. While it is true his name did not
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appear on the summons itself, one of the purposes of a summons is to advise the defendant that he
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has been named in a complaint. See Cabrera v. Las Vegas Metro. Police Dep’t, No. 2:12-cv-
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00918-RFB-CWH, 2014 WL 6634821, at *4 (D. Nev. Nov. 21, 2014) (noting rules for service of
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process “are to be applied in a manner that will best effectuate their purpose of giving the
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defendant adequate notice”) (quoting Direct Mail Specialists, Inc., 840 F.2d at 688). Certainly,
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providing the complaint along with the summons puts that defendant on constructive notice of the
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action’s filing and his potential involvement in it. However, a lay person may have been
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confused by the summons’ failure to name him. Therefore, this factor does not weigh strongly
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for or against defendant’s motion.
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Defendant Navarro next argues that he had a meritorious defense because he is mentioned
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“only a single time in the entire Complaint,” and would bring a motion under Rule 12(b)(6) to
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dismiss the case for failure to state a claim. (Doc. No. 64 at 5–6 (emphasis removed).) This
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argument is not persuasive. While Navarro is not mentioned individually with great frequency in
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the first amended complaint (“FAC”), that document notes early on that defendants Bunch,
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Navarro, and Evers would be collectively referenced as “the Investigators” throughout the
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complaint. (Doc. No. 31 at ¶ 11.) The FAC is replete with factual allegations against “the
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Investigators”—clearly including defendant Navarro. (See, e.g., id. at ¶ 17 (“[A]s the election got
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closer, the Investigators became more aggressive towards Mr. Singh (and Mr. Carson), pressuring
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him more and more to “turn over Carson,” or give them “something on Carson.”); id. at ¶ 23
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(alleging the investigators accused plaintiff Singh of wrongdoing during a six-hour interrogation,
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did not take steps to preserve evidence, and refused to provide a transcript of his polygraph
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examination); id. at ¶ 24 (stating investigators began to threaten plaintiffs’ family and friends and
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tell them plaintiff Singh is a murderer); id. at ¶ 25 (plaintiffs’ friends were threatened by the
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investigators and told plaintiff Singh was a murderer and a pimp); id. at ¶ 26 (the investigators
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threatened plaintiff Karan with an investigation for real estate fraud “if she didn’t ‘give them what
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they wanted’”).) If defendant Navarro’s sole argument in a motion under Rule 12(b)(6) was that
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he was only named once in the complaint, this argument would not be meritorious, particularly
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since the court has heard a motion to dismiss in this matter and found the complaint states at least
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some cognizable claims against one of the other investigators, defendant Bunch. (See Doc. No.
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40.) Furthermore, what is necessary to satisfy the “meritorious defense” requirement is that the
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defendant “allege sufficient facts that, if true, would constitute a defense.” United States v.
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Aguilar, 782 F.3d 1101, 1107 (9th Cir. 2015) (emphasis added) (quoting Mesle, 615 F.3d at
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1092). While “the question [of] whether the factual allegation [i]s true is not to be determined by
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the court when it decides the motion to set aside the default,” and the court is merely looking to
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see whether the factual question “would be the subject of the later litigation,” id. (internal
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quotations omitted), defendant Navarro has not stated any factual allegations that would
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constitute a defense. Instead, he suggests he would defend solely on a legal ground of uncertain
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merit. The court concludes this factor weighs against allowing defendant Navarro to set aside the
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entry of default.
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Finally, the question of whether plaintiffs would be prejudiced is easily answered in the
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negative. “To be prejudicial, the setting aside of a judgment must result in greater harm than
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simply delaying resolution of the case.” Mesle, 615 F.3d at 1095 (quoting TCI Grp., 244 F.3d at
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701). This case has not yet even had an initial scheduling conference, and therefore no deadlines
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have passed that the setting aside of default would affect. Discovery has yet to open, and
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plaintiffs will experience no prejudice by the setting aside of this default.
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The law clearly supports procedural decisions that encourage cases to be decided on the
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merits. See Mesle, 615 F.3d at 1089 (“[A] case should, whenever possible, be decided on the
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merits.”) (quoting Falk, 739 F.2d at 463); Franchise Holding II, LLC, 375 F.3d at 924.
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Combining this with the fact that no prejudice will inure to plaintiffs by allowing the entry of
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default to be set aside, the court will exercise its discretion to set aside the entry of default,
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notwithstanding any factors weighing against doing so here.
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B.
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Having set aside the default, the court now turns to the separate question of whether
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Motion to Quash Service and Dismiss Defendant Navarro
defendant Navarro’s motion to quash service should be granted and, if so, whether he should be
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dismissed from the case. This court recently addressed a similar issue in this case concerning
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defendant Evers in July 2017. (See Doc. No. 58.)
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As the court has previously stated, under Rule 4 of the Federal Rules of Civil Procedure,
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an individual may be served by “following state law for serving a summons in an action brought
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in courts of general jurisdiction in the state where the district court is located or where service is
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made.” Fed. R. Civ. P. 4(e)(1).1 In California, such methods of service include, in pertinent part,
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(1) personal delivery to a defendant or authorized agent; or (2) delivery by “substitute service” to
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someone else at defendant’s residence or place of business. Cal. Code Civ. Proc. §§ 415.10,
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415.20. None of the proofs of service filed by plaintiffs indicate defendant Navarro was served
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personally. (See Doc. Nos. 25, 46.2) Given this, the court must determine whether plaintiffs
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properly effected substitute service, keeping in mind that “[s]o long as a party receives sufficient
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notice of the complaint, Rule 4 is to be ‘liberally construed’ to uphold service.” Travelers Cas. &
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Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (quoting Chan v. Soc’y
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Expeditions, Inc., 39 F.3d 1398, 1404 (9th Cir. 1994)). Further, “[t]echnical defects in a
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Alternatively, Rule 4 also sets forth enumerated methods of service, but methods of service
under California law are generally broader.
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While filed on separate dates, these appear to reflect the same, singular attempt to serve
defendant Navarro. (Compare Doc. No. 25 with Doc. No. 46.)
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summons do not justify dismissal unless a party is able to demonstrate actual prejudice.” Chan,
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39 F.3d at 1404.
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As an initial matter, under California law, a summons “shall be directed to the defendant.”
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Cal. Civ. Proc. Code § 412.20(a). Defendant Navarro declares that the summons he receives was
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not directed to him. (Doc. No. 65 at ¶ 2.) Indeed, the summons he attaches as an exhibit to his
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motion does not list his name. (See id. at 5.) Clearly, service here was facially deficient.
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Moreover, as with defendant Evers, California law allows substitute service—including
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leaving a copy of the summons and complaint at a person’s usual place of business—but first
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requires the plaintiff to attempt personal service with reasonable diligence. Cal. Civ. Proc. Code
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§ 415.20(b). When a defendant challenges this method of service, the plaintiff bears the burden
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to demonstrate that she made reasonable attempts to serve the defendant personally before
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resorting to substitute service. Evartt v. Superior Court, 89 Cal. App. 3d 795, 801 (1979). After
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copies of the summons and complaint are delivered, plaintiffs must also mail separate copies “by
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first-class mail, postage prepaid to the person to be served at the place where a copy of the
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summons and complaint were left.” § 415.20(b). Plaintiffs here have made no showing that they
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ever attempted to serve defendant Navarro personally, nor that they have mailed him a separate
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copy of the summons and complaint.
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The court next turns to whether defendant Navarro should be dismissed from the case. “If
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a defendant is not served within 90 days after the complaint is filed, the court—on motion or on
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its own after notice to the plaintiff—must dismiss the action without prejudice against that
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defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m). “Rule 4 is
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a flexible rule that should be liberally construed so long as a party receives sufficient notice of the
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complaint.” Whidbee v. Pierce County, 857 F.3d 1019, 1023 (9th Cir. 2017) (quoting Direct Mail
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Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988)). Even
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when a plaintiff has failed to correctly make service, the court must allow plaintiff additional time
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for service “if the plaintiff shows good cause for the failure” to serve defendant. Fed. R. Civ. P.
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4(m); see also Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009) (“[T]he district court
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must extend time for service upon a showing of good cause.”). Additionally, “if good cause is
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not established, the district court may extend time for service upon a showing of excusable
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neglect.” Lemoge, 587 F.3d at 1198; see also Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir.
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2013); United States v. 2,164 Watches, 366 F.3d 767, 772 (9th Cir. 2004) (noting that courts have
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broad discretion to extend time for service, if warranted, and need not require a showing of good
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cause). Good cause is shown by establishing excusable neglect, along with actual notice to the
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party that should have been served, a lack of prejudice to the unserved party, and severe prejudice
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to the plaintiff. Lemoge, 587 F.3d at 1198 n.3.
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Plaintiffs have not attempted to establish either good cause or excusable neglect here and
have not explained why the suit should not be dismissed without prejudice against defendant
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Navarro. Even construing Rule 4 liberally, it is clear plaintiffs have not complied with the
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requirements for service of process and have presented no reason for their failure to do so.
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Furthermore, this case has now been pending before the court for more than two and a half years
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and has yet to proceed to an initial scheduling conference. Therefore, service is quashed and
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defendant Navarro will be dismissed from this action without prejudice.
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CONCLUSION
For the reasons given above:
1. The motion to set aside the entry of default, quash service of process, and dismiss
defendant Navarro from the complaint (Doc. No. 63) is granted;
2. Defendant Navarro and all claims against him are dismissed, without prejudice, from this
action; and
3. This matter is referred back to the assigned magistrate judge for further proceedings
consistent with this order.
IT IS SO ORDERED.
Dated:
October 24, 2017
UNITED STATES DISTRICT JUDGE
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