Al Azzawi v. Kellogg Brown and Root

Filing 17

ORDER granting in part 5 Motion to Dismiss signed by Magistrate Judge Allison Claire on 10/26/15. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WAMEEDH AL AZZAWI,

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Plaintiff,

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No. 2:15-cv-01468-GEB-AC

v.

ORDER

KELLOGG BROWN AND ROOT,

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Defendant.

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On October 14, 2015, the court held a hearing on defendant Kellogg Brown and Root’s

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(“KBR” or “defendant”) motion to dismiss or, in the alternative, motion to quash. Plaintiff

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appeared in pro per and Tracy Zinsou and W. Douglas Sprague appeared on behalf of defendant.

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On review of the motions, the documents filed in support and opposition, upon hearing the

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arguments of plaintiff and counsel, and good cause appearing therefor, THE COURT FINDS AS

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FOLLOWS:

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PROCEDURAL HISTORY
Plaintiff filed his complaint in this matter on July 9, 2015. ECF No. 1. On August 14,

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2015, defendant filed a motion to dismiss plaintiff’s complaint based on a failure to properly

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serve under Rule 12(b)(5). ECF No. 5. On August 17, 2015, plaintiff filed a proof of service that

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included a certified mail receipt addressed to Kellogg Brown and Root (KBR), 601 Jefferson

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Street, Houston, Texas 77002. ECF No. 8. On August 24, 2015, plaintiff filed a notice,
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explaining that on the day he filed his complaint in this matter he sent an email to defendant and

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the arbitrators before the Tribunal, letting them know he had done so. ECF No. 9. On September

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4, 2015, plaintiff filed an email dated July 9, 2015, sent from one of the members of the Tribunal

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to the remaining members informing them of plaintiff’s case. ECF No. 10.

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On September 11, 2015, the court continued the hearing on defendant’s motion to dismiss

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to October 14, 2015, because plaintiff had failed to file a timely opposition. ECF No. 12. On

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September 15, 2015, plaintiff filed an opposition to defendant’s motion, arguing that defendant

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was properly served on two occasions: (1) when plaintiff sent documents to the address on

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defendant’s website via certified mail; and (2) when plaintiff emailed defendant’s counsel in the

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Tribunal matter to alert them of the commencement of this case. ECF No. 13. The next day,

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plaintiff filed a letter objecting to defendant’s motion to dismiss based on the claim that defendant

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did not properly noticed the motion in accordance with the court’s August 17, 2015, minute order.

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ECF No. 14. On October 7, 2015, defendant filed a reply to plaintiff’s opposition arguing that

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plaintiff has yet to establish he properly served defendant in accordance with the Federal Rules or

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state law. ECF No. 15.

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LEGAL STANDARDS
When a defendant challenges service, the plaintiff bears the burden of establishing its

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sufficiency. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). In federal court,

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sufficiency of process is governed by Rule 4. See Employee Painters’ Trust v. Ethan Enters.,

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Inc., 480 F.3d 993, 999 (9th Cir. 2007). Rule 4 is a flexible rule that should be liberally construed

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so long as a party receives sufficient notice of the complaint. United Food & Commercial

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Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984). “However, neither

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actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction

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absent ‘substantial compliance with Rule 4.’” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986),

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cert. denied, 484 U.S. 870 (1987) (citation omitted).

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Under Rule 4(h), a plaintiff may serve a corporation by delivering a copy of the summons

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to an officer, managing or general agent, or to any other authorized agent. In the Ninth Circuit,

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“service of process is not limited solely to officially designated officers, managing agents, or
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agent appointed by law for the receipt of process.” Direct Mail Specialists, Inc. v. Eclat

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Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988). Service may be made

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“upon a representative so integrated with the organization that he will know what to do with the

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papers.” Id. (citation omitted). Service on an individual who holds a position that indicates

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authority with the organization generally is sufficient. Id.

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Rule 4(h) states that service may also be made pursuant to the law of the state in which the

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district court is located or where service occurs. This court is located in California and plaintiff

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attempted to serve defendant in Texas. California Civil Procedure Code § 415.40 allows the

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service of a person outside the state by mailing the summons “to the person to be served” by first-

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class mail, return receipt requested. Section 416.10 provides that a corporation is served by

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delivering a copy of the summons and complaint to someone designated as agent for service of

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process, the president, chief executive officer, or other head of the corporation, a vice president, a

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secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial

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officer, or a general manager. In Texas, corporations may be served with process through their

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president, vice president, or registered agent. Tex. Bus. Orgs. Code Ann. §§ 5.201(b), 5.255(1).

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Accordingly, when a corporation is served by registered or certified mail the record must show

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that citation was delivered to the defendant through an agent authorized to receive service of

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process for the corporation. See Tex. R. Civ. P. 107(c) (requiring return of service to contain the

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return receipt with the addressee's signature).

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Finally, California and the federal courts both have articulated standards of substantial

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compliance when it comes to service.1 In California, this standard mandates that when serving a

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corporation the summons and complaint ultimately be received by one of the “persons to be

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served” as defined in Civil Procedure Code § 416.10. The Ninth Circuit’s standard, on the other

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hand, requires the following:

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(a) the party that had to be served personally
received actual notice, (b) the defendant would

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Neither party has pointed to authority indicating that Texas has a substantial compliance
standard when it comes to service of process, and the court’s own research indicates no such
standard exists.
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suffer no prejudice from the defect in service, (c)
there is a justifiable excuse for the failure to serve
properly, and (d) the plaintiff would be severely
prejudiced if his complaint were dismissed.

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In re 701 Mariposa Project, LLC, 514 B.R. 10, 17 (B.A.P. 9th Cir. 2014) (quoting Whale v.

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United States, 792 F.2d 951, 953 (9th Cir. 1986)).

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Insufficient service of process may result in either dismissal or the quashing of service

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under Federal Rule of Civil Procedure 12(b)(5). Dismissal of a complaint is inappropriate when

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there exists a reasonable prospect that service may yet be obtained. Umbenhauer v. Woog, 969

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F.2d 25, 30 (3rd Cir. 1992); Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2nd Cir.

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1985); Novak v. World Bank, 703 F.2d 1305, 1310 (D.C. Cir. 1983).
ANALYSIS

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By addressing his summons and complaint to KBR the entity, and not to someone with the

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authority to accept service for KBR, plaintiff failed to properly serve defendant under both federal

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and state law. The Federal Rules require that service upon a corporation be made, in person, to

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someone in a position of authority. Fed. R. Civ. P. 4(h). Although the Federal Rules encourage

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waiver of formal service, they do not allow for service by mail. See Fed. R. Civ. P. 4(d), (h).

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California and Texas law allow for service upon corporations by certified mail; however, both

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states require that people in certain positions of authority be named as an addressee. Cal. Civ. P.

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Code § 416.10; Tex. Bus. Orgs. Code §§ 5.201(b), 5.255(1). Plaintiff’s own proof of service

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shows that he attempted to serve defendant by mail with an address naming only the corporate

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entity. This plainly fails to meet the federal service rules, which require service to be done in

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person. Plaintiff’s attempt also falls short of the foregoing state laws on service because no

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individual authorized to accept service was named as an addressee.

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Plaintiff has also not met state or federal standards for substantial compliance. The

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federal substantial compliance doctrine exists to save instances of ineffective service based on

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technical defects to avoid dismissals that would prejudice the plaintiff. Plaintiff’s attempt to

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serve defendant via certified mail, when service by mail is not contemplated under the Federal

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Rules at all, is far from a technical defect. See Anunciation v. W. Capital Fin. Servs. Corp., 97
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F.3d 1458 (9th Cir. 1996) (citing a defect in the summons as an example of a technical defect).

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Plaintiff’s attempt at service also does not substantially comply with state law because there is no

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evidence that one of the “persons to be served” listed in California Civil Procedure Code § 416.10

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ever received the summons and complaint. See Dill v. Berquist Constr. Co., 24 Cal. App. 4th

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1426, 1437 (1994), as modified on denial of reh’g (May 26, 1994) (“Therefore, Dill could be held

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to have substantially complied with the statute if, despite his failure to address the mail to one of

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the persons to be served on behalf of the defendants, the summons was actually received by one

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of the persons to be served.”).

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In light of the foregoing, the court finds that plaintiff has not met his burden of

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establishing that he either strictly or substantially complied with applicable standards governing

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service of process. See Watts v. Enhanced Recovery Corp., Case No. 10-CV-02606-LHK, 2010

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U.S. Dist. LEXIS 95708, at *12 (N.D. Cal. Sept. 1, 2010) (“Plaintiff has not cited, and this Court

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has not found, any case in which a summons addressed only to a corporate entity, not directed by

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name or by title to an individual listed in § 416.10 and not actually received by such person, has

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been deemed to substantially comply with the statutory requirements.”). The court will not,

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however, dismiss plaintiff’s complaint. Instead, because defendant can still be properly served,

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the court will quash plaintiff’s attempt at servic, and direct him to re-serve defendant within

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fourteen (14) days of the service of this order. As defendant noted at the hearing, it can be

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properly served by sending a copy of the summons and complaint via certified mail to: CT

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Corporation System, 1999 Bryan St., Suite 900, Dallas, TX 75201.

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CONCLUSION

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THE COURT HEREBY ORDERS that

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1. Defendant’s motion to dismiss or, in the alternative, motion to quash, ECF No. 5, is

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GRANTED IN PART.

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2. Plaintiff must serve defendant within fourteen (14) days of the service of this order by
sending via certified mail, postage prepaid, a copy of the summons and complaint to:
CT Corporation System
1999 Bryan St., Suite 900
Dallas, Texas 75201

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Plaintiff must also file proof of service upon defendant with the court in the form of a receipt

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indicating the addressee and the date mailed. See Local Rule 135(c).

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DATED: October 26, 2015

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