Bratset v. Davis Joint Unified School District et al

Filing 22

ORDER signed by Magistrate Judge Kendall J. Newman on 05/17/16 ORDERING that 19 DJUSD's Motion to Dismiss the action for insufficient service of process, in which defendant WJUSD joined, is GRANTED IN PART and DENIED IN PART; service of proces s on defendants DJUSD and WJUSD is QUASHED; plaintiffs shall complete proper service of process on defendants by 07/04/16; 13 15 WJUSD's Motion to Dismiss is DENIED WITHOUT PREJUDICE; the 06/09/16 hearing on defendants' motions is VACAT ED as moot; plaintiff's 10 Motion for Appointment of Counsel is DENIED; No later than 06/30/16, plaintiff M.B. shall appear through a licensed attorney and file a request for appointment of an appropriate guardian ad litem; plaintiff's 9 Motion requesting pendent placement is DENIED WITHOUT PREJUDICE. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAURA BRATSET, et al.,

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No. 2:16-cv-35-GEB-KJN PS

Plaintiffs,
v.

ORDER

DAVIS JOINT UNIFIED SCHOOL
DISTRICT, et al.,
Defendants.

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This case was initially commenced by plaintiffs Laura Bratset, as parent on behalf of

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minor plaintiff M.B., and Laura Bratset, on behalf of herself, proceeding without counsel, against

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defendants Davis Joint Unified School District (“DJUSD”) and Winters Joint Unified School

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District (“WJUSD”) on January 6, 2016. (ECF No. 1.) After the court denied plaintiffs’ motion

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to proceed in forma pauperis on March 24, 2016, plaintiffs paid the filing fee on April 5, 2016,

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and the summons and other civil case documents were issued that same day. (ECF Nos. 3-5.) On

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April 18, 2016, plaintiffs filed a first amended complaint. (ECF No. 8.) Since the issuance of

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summons, several motions were filed by various parties to this action. This order resolves those

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pending motions and other matters.

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On May 4, 2016, defendant DJUSD filed a motion to dismiss the action for insufficient
service of process pursuant to Federal Rule of Civil Procedure 12(b)(5). (ECF No. 19.)
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Defendant WJUSD has joined in that motion. (ECF No. 21.) Defendants contend that plaintiffs’

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service of process was insufficient in various respects, including that plaintiff herself attempted to

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serve the defendants by mail and in person. It is well established that a party to a lawsuit may not

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serve process. See Fed. R. Civ. P. 4(c)(2) (“Any person who is at least 18 years old and not a

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party may serve a summons and complaint.”) (emphasis added); see also Cal. Civ. Proc. Code §

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414.10 (“A summons may be served by any person who is at least 18 years of age and not a party

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to the action.”) (emphasis added). “A liberal construction of Rule 4 cannot be utilized as a

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substitute for the plain requirement as to the manner in which service of process may be had.”

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Reeder v. Knapik, 2007 WL 1655812, at *1 (S.D. Cal. June 5, 2007) (citing Mid-Continent Wood

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Products, Inc. v. Harris, 936 F.2d 297, 300 (7th Cir. 1991)). In this case, plaintiffs’ certificates of

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service indicate on their face that plaintiff Laura Bratset herself, despite being a party to the

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action, attempted to complete service of process. (ECF Nos. 6, 11, 12.) As such, service of

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process was plainly insufficient.

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“Upon deciding that process has not been properly served on the defendant, a district court

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has broad discretion to either dismiss the complaint or quash service of process.” Surefire, LLC

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v. Casual Home Worldwide, Inc., 2012 WL 2417313, at *2 (S.D. Cal. Jun. 26, 2012). “However,

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if it appears that effective service can be made and there has been no prejudice to the defendant, a

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court will quash service rather than dismiss the action.” Id. Here, it appears that effective service

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on defendants can still be made. The 90-day period to complete service of process pursuant to

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Federal Rule of Civil Procedure 4(m) has not yet expired, and the court is unaware of any specific

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prejudice to the defendants.1 As such, the court quashes service of process in lieu of dismissal.

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Federal Rule of Civil Procedure 4(m) provides, in part, 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 or order that service
be made within a specified time. But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.” In this case, although the complaint
was filed on January 6, 2016, it was accompanied by a motion to proceed in forma pauperis. The
summons was only issued by the Clerk of Court on April 5, 2016, after the court denied the
motion to proceed in forma pauperis and plaintiff paid the filing fee. (ECF No. 4.) Because
plaintiff could not have served her complaint without a summons, it appears that the Rule 4(m)
90-day period actually commenced on April 5, 2016, thus requiring plaintiff to complete service
of process by July 4, 2016. Moreover, even if the Rule 4(m) period strictly commenced upon the
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Defendant WJUSD also filed an alternative motion to dismiss the action pursuant to

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Federal Rule of Civil Procedure 12(b)(6), as well as to strike improper allegations pursuant to

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Federal Rule of Civil Procedure 12(f) and for a more definite statement pursuant to Federal Rule

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of Civil Procedure 12(e). However, because the court quashes service of process on defendant

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WJUSD, the court denies that motion without prejudice at this juncture. Defendant WJUSD may

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renew its motion if it appears in the action after having been properly served with process.

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Plaintiffs also filed two motions. The first is a motion for appointment of counsel. It is

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“well-established that there is generally no constitutional right to counsel in civil cases.” United

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States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996). Moreover, although the court is

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sympathetic to the difficulties faced by pro se litigants in litigating their own cases in federal

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court, the court has extremely limited resources to appoint attorneys in civil cases. As such,

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plaintiffs’ motion for appointment of counsel is denied.

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Plaintiffs are advised that, although plaintiff Laura Bratset can prosecute her own claims

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without counsel, she cannot, as a non-lawyer, represent plaintiff M.B. in federal court. To be

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sure, plaintiff Laura Bratset could request to be appointed as guardian ad litem for plaintiff M.B.,

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but an appointed guardian ad litem would still have to retain a licensed attorney to prosecute

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claims in federal court on behalf of the minor plaintiff. See Johns v. County of San Diego, 114

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F.3d 874, 877 (9th Cir. 1997) (“[W]e hold that a parent or guardian cannot bring an action on

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behalf of a minor child without retaining a lawyer.”); Estate of Laffoon v. Christianson, 2011 WL

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1743645, at *1 (E.D. Cal. Feb. 22, 2011) (“[A] non-attorney parent or guardian cannot bring a

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lawsuit in federal court on behalf of a minor or incompetent without retaining a lawyer. This is so

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because the minor’s right to trained legal assistance is greater than the parent’s right to appear pro

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se.”).

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In her motion for appointment of counsel, plaintiff Laura Bratset indicated that she has

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already made extensive efforts to obtain counsel, which were unsuccessful. Nevertheless, out of

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abundance of caution, the court grants plaintiffs an additional period of time until June 30, 2016,

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filing of plaintiff’s complaint, the court finds good cause to extend the time for completion of
service of process until July 4, 2016.
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to obtain counsel for plaintiff M.B. No later than June 30, 2016, plaintiff M.B. shall appear

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through a licensed attorney and file a request for appointment of an appropriate guardian ad litem

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in accordance with Local Rule 202 and Federal Rule of Civil Procedure 17.2 Failure to do so will

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result in dismissal of plaintiff M.B.’s claims without prejudice.

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Finally, plaintiffs’ second motion is a “motion requesting pendent placement.” That

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motion essentially requests a court order requiring defendants to maintain plaintiff M.B.’s current

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educational placement and services pending resolution of this case. However, because plaintiffs

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have not yet properly served defendants with process, the court lacks the requisite personal

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jurisdiction over the defendants to even conceivably enter such an order. See Omni Capital Int’l,

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Ltd. v. Wolff & Co., Ltd., 484 U.S. 97, 104 (1987) (“Before a federal court may exercise personal

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jurisdiction over a defendant, the procedural requirement of service of summons must be

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satisfied.”). Therefore, the court denies plaintiffs’ motion without prejudice, and without

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expressing any opinion concerning the merits of the motion. Plaintiffs are free to renew such a

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motion once defendants have been properly served with process and have appeared in the action,

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whereupon defendants will also have an opportunity to oppose such requested relief, if they elect

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to do so.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant DJUSD’s motion to dismiss the action for insufficient service of process

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pursuant to Federal Rule of Civil Procedure 12(b)(5), in which defendant WJUSD

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joined, is GRANTED IN PART and DENIED IN PART.

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2. Service of process on defendants DJUSD and WJUSD is QUASHED.

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3. Plaintiffs shall complete proper service of process on defendants no later than July 4,

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2016.

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4. Defendant WJUSD’s motion pursuant to Federal Rules of Civil Procedure 12(b)(6),

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12(e), and 12(f) is DENIED WITHOUT PREJUDICE.

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5. The June 9, 2016 hearing on defendants’ motions is VACATED as moot.

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Of course, that attorney may, but need not, agree to also represent plaintiff Laura Bratset.
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6. Plaintiffs’ motion for appointment of counsel is DENIED.

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7. No later than June 30, 2016, plaintiff M.B. shall appear through a licensed attorney

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and file a request for appointment of an appropriate guardian ad litem in accordance

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with Local Rule 202 and Federal Rule of Civil Procedure 17.

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8. Plaintiff’s motion requesting pendent placement is DENIED WITHOUT
PREJUDICE.

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9. This order resolves ECF Nos. 9, 10, 13, 15, and 19.

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IT IS SO ORDERED.

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Dated: May 17, 2016

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