Imperial v. City and County of San Francisco

Filing 42

ORDER by Judge Claudia Wilken DENYING 34 Defendant's Motion to Dismiss (cwlc2, COURT STAFF) (Filed on 4/20/2010)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant James T. Ramsey, sued as Inspector Ramsey, moves to dismiss Plaintiff Anthony Imperial's Second Amended Complaint (2AC) for insufficient process and insufficient service of process. Plaintiff opposes the motion. submission on the papers. The motion was taken under v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants. / IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ANTHONY IMPERIAL, Plaintiff, No. 08-05644 CW ORDER DENYING DEFENDANT JAMES T. RAMSEY'S MOTION TO DISMISS (Docket No. 34)

Having considered all the papers

submitted by the parties, the Court DENIES Defendant Ramsey's Motion to Dismiss. Instead, the Court allows Plaintiff fourteen

days from the date of this Order to serve Defendant Ramsey. BACKGROUND Plaintiff filed his original complaint on December 18, 2008, alleging that San Francisco Police Department officers harassed him in violation of 42 U.S.C. § 1983. The original complaint named as

Defendants the City and County of San Francisco and ten unknown "Doe" individuals. The City and County moved to dismiss Plaintiff's first complaint for failure to state a claim. In lieu of a timely

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opposition, Plaintiff filed an amended complaint, which the City and County moved to dismiss for failure to state a claim. The

Court granted this motion and dismissed Plaintiff's complaint with leave to amend. Plaintiff filed his 2AC on July 9, 2009, naming Inspector Ramsey and several Doe individuals as Defendants. dropped his claims against the City and County. Plaintiff

The Court's

records do not show that the Clerk issued a summons for Defendant Ramsey. DISCUSSION Defendant Ramsey does not dispute that he received a copy of the 2AC. He nonetheless asserts that service was insufficient He

because the 2AC was not accompanied by a court summons.

challenges the sufficiency of service under Federal Rule of Civil Procedure 12(b)(5).1 A federal court lacks personal jurisdiction over a defendant if service of process is insufficient. Omni Capital Int'l v. A court may dismiss Once a

Rudolf Wolff & Co., 484 U.S. 97, 104 (1987).

the action without prejudice pursuant to Rule 12(b)(5).

defendant challenges service, a plaintiff bears "the burden of establishing that service was valid under" Federal Rule of Civil Procedure 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004).

Defendant Ramsey also moves pursuant to Rule 12(b)(4). However, a Rule 12(b)(4) motion addresses insufficient process, which attacks the content of a summons. See Chilicky v. Schweiker, 796 F.2d 1131, 1136 (9th Cir. 1986), rev'd on other grounds, 487 U.S. 412 (1988) (stating that Rule 12(b)(4) was "designed to challenge irregularities in the contents of the summons"). Defendant Ramsey does not assert such a challenge. 2

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Federal Rule of Civil Procedure 4(b) requires a court summons to be issued for each defendant. Under Rule 4(c)(1), a plaintiff

must serve each defendant with a summons and a copy of the complaint. Proper service must occur within 120 days after the Fed. R. Civ. P. 4(m). If such service has not

complaint is filed.

occurred, a court "must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Id. Although Rule 4 should be construed

liberally, "`neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction without substantial compliance with Rule 4.'" SEC v. Ross, 504 F.3d 1130,

1140 (9th Cir. 2007) (quoting Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986)). Plaintiff does not argue that service on Defendant Ramsey was proper. Instead, he asserts that the service, via e-filing, of the

2AC on the City Attorney's Office, which represented the City and County, constituted service on Defendant Ramsey. He appears to

argue that, because the City and County and Defendant Ramsey share counsel, service on one is the equivalent of service on the other. This is incorrect. Rule 4 requires a plaintiff to obtain a summons

that names each defendant and to serve it along with a copy of the complaint on each defendant. Plaintiff did not satisfy either

requirement: no summons issued naming Defendant Ramsey and Plaintiff did not serve him with any summons. Although Defendant

Ramsey acknowledges that he received Plaintiff's 2AC, this does not satisfy the requirements of Rule 4. Nonetheless, the Court DENIES Defendant Ramsey's Motion to 3

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Dismiss.

(Docket No. 34.)

Within fourteen days of the date of

this Order, Plaintiff shall (1) obtain a summons for Defendant Ramsey from the Clerk of the Court, (2) serve this summons and a copy of the 2AC on Defendant Ramsey in accordance with the requirements of Rule 4 and (3) file proof of service with the Court. If Plaintiff does so, Defendant Ramsey shall file an answer

or motion to dismiss within twenty-one days of the date of service. A case management conference shall be held on July 20, 2010 at 2:00 p.m. Failure by Plaintiff to comply with the requirements of this Order will result in the dismissal of his claims without prejudice. IT IS SO ORDERED.

Dated: April 20, 2010

CLAUDIA WILKEN United States District Judge

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