Grimes v. Barber et al

Filing 33

ORDER by Judge Claudia Wilken GRANTING 18 MOTION TO QUASH AND QUASHING SERVICE UPON DEFENDANTS OFFICERS BARBER, SMITH AND TANG. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 2/27/2013)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4

JEROME L. GRIMES,

5
6
7
8
9

Plaintiff,

United States District Court
For the Northern District of California

ORDER GRANTING
MOTION TO QUASH
(Docket No. 18)
AND QUASHING
SERVICE UPON
DEFENDANTS
OFFICERS BARBER,
SMITH AND TANG

v.
OFFICER BARBER; OFFICER SMITH;
OFFICER TANG; and BOARD OF
TRUSTEES OF CALIFORNIA STATE
UNIVERSITY,
Defendants.

10
11

No. C 12-3111 CW

________________________________/
Defendants Officers Barber, Smith and Tang move to dismiss

12
the instant complaint for insufficient service of process or to
13
quash service of summons pursuant to Federal Rule of Civil
14
Procedure 12(b)(5).

Plaintiff Jerome L. Grimes opposes the

15
motion.

The Court took the motion under submission on the papers.

16
For the reasons set forth below, the Court GRANTS Defendants’
17
motion and QUASHES service upon them.
18
BACKGROUND
19
On June 15, 2012, Plaintiff filed a complaint alleging that
20
he was injured by Officers Barber, Smith and Tang in connection
21
with a jay-walking incident on the San Francisco State University
22
campus.

Officers Barber, Smith and Tang are peace officers

23
employed by the San Francisco State University Police Department.
24
Defendant Board of Trustees of California State University is
25
authorized by statute to administer the universities in the
26
California State University system.
27
28

See Cal. Educ. Code § 66600.

1

On August 2, 2012, the Court dismissed Plaintiff’s claims

2

against the Board of Trustees for lack of subject matter

3

jurisdiction, finding that the claims were barred by sovereign

4

immunity.

5

did not appear from the docket that Officers Barber, Smith and

6

Tang had been served.

7

Defendants were required to be served by October 15, 2012 pursuant

8

to Federal Rule of Civil Procedure 4(m).

9

by October 18, 2012, Plaintiff was required to file either proof

Docket No. 13.

At that time, the Court noted that it

The Court warned Plaintiff that these

The Court ordered that,

United States District Court
For the Northern District of California

10

of service upon each remaining Defendant or a motion for

11

additional time in which to serve Defendants, in which he provided

12

good cause for the failure to serve them within the allowed time

13

period.

14

On August 7, 2012, Plaintiff returned an executed summons and

15

a number of certificates of service.

16

face of the summons, after it was issued, Plaintiff crossed out

17

the Board of Trustees and wrote in its place “San Francisco State

18

Univ., Campus Police Department.”

19

signed the proof of service attached to the summons identifying

20

himself as the server, stated that, on August 7, 2012, he served

21

the summons on “Mary Lee Assistant to University Counsel

22

S.F.S.U./Police Department” and indicated that she was authorized

23

to accept service on behalf of Officers Barber, Smith and Tang and

Docket Nos. 14-17.1

Docket No. 14, 1.

On the

Plaintiff

24
25
26
27
28

1

The Court notes that, on these documents and Plaintiff’s
opposition to the instant motion, Plaintiff has identified himself
as both “pro se” and as a “Real Estate Attorney.” See, e.g.,
Docket No. 14, 2; Docket No. 24, 2. Plaintiff is not admitted to
the Bar of this Court or licensed by the State Bar of California
and is cautioned that he must not represent that he is authorized
to practice law, other than to represent himself.
2

1

the San Francisco State University Campus Police Department.

2

at 2.

Id.

3

The first certificate of service indicated that, on August 7,

4

2012, he mailed copies of various documents, including the summons

5

and complaint, to San Francisco State University Campus Police

6

Department and Officers Barber, Smith and Tang at 1600 Holloway

7

Avenue in San Francisco.

8

certificates of service indicated that, on August 7, 2012, he

9

mailed a copy of the summons and multiple proofs of service to the

Docket No. 15, 1.

The second and third

United States District Court
For the Northern District of California

10

Attorney General of California, to “Patricia Bartscher, Esq.,

11

University Counsel,” and “Michael Martin, Risk Management.”

12

Docket No. 15, 2; Docket No. 16, 1.

13

stated that, on June 19, 2012, he served the summons for “[Board

14

of Trustees Of: California State Universities] S.F.S.U. Campus

15

Police Department” on “Sgt. Wilson.”

16

The final proof of service

Docket No. 17, 1.

Officers Barber, Smith and Tang now move to quash service or

17

dismiss for insufficient service of process.

18

their motion, they have submitted the declaration of Jason Porth.

19

Porth Decl., Docket No. 20.

20

Staff to the President of San Francisco State University.

21

Decl. ¶ 1.

22

on the University’s campus and is directly next door to the office

23

of Ms. Bartscher, who is the University’s counsel.

24

5.

25

campus from the police department.

26

Docket No. 18.

With

Mr. Porth is the Deputy Chief of
Porth

His office is located in the Administration Building

Id. at ¶¶ 1,

The Administration Building is on the opposite side of the
Id. ¶ 5 & Ex. A.

Mr. Porth attests that, on August 7, 2012, Mary Lee, Ms.

27

Bartscher’s assistant, came into his office and asked for

28

assistance in communicating with Mr. Grimes, who was there
3

1

apparently trying to serve papers on the Defendant Officers.

2

at ¶ 7.

3

not authorized to accept service on behalf of San Francisco State

4

University or its employees and that leaving papers with them

5

would not constitute proper service.

6

their statements but insisted on leaving several sets of papers

7

with Ms. Lee.

8
9

Id.

Mr. Porth and Ms. Lee both told Mr. Grimes that they were

Id.

Mr. Grimes acknowledged

Id. at ¶ 3.

Plaintiff opposes Defendants’ motion.

Docket No. 24.

With

his opposition, he has filed a declaration stating, among other

United States District Court
For the Northern District of California

10

things, that, on August 7, 2012, he went to the San Francisco

11

State University Campus Police Department, that “Sgt. Wilson,

12

S.F.S.U. Campus Police Personnel” and “Mrs. Shearer, S.F.S.U.

13

Campus Police Department Office Personnel” refused to accept the

14

summons and complaint from him and told him to mail or take the

15

document to the University’s counsel or the Attorney General.

16

Grimes Decl., Docket No. 25, ¶¶ 3, 4, 6.

17

that these individuals were “authorized by law to accept service.”

18

Id.

19

authorized by law or appointment to receive service of process.

20

Reply at 3 n.1.

21
22

Plaintiff represents

Defendants dispute that Sergeant Wilson or Mrs. Shearer are

LEGAL STANDARD
A federal court lacks personal jurisdiction over a defendant

23

if service of process is insufficient.

24

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

25

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

26

service is challenged, plaintiffs bear the burden of establishing

27

that service was valid under Rule 4.”

28

798, 801 (9th Cir. 2004) (citing 4A Charles A. Wright & Arthur R.
4

Omni Capital Int’l v.
A court may dismiss
“Once

Brockmeyer v. May, 383 F.3d

1

Miller, Federal Practice and Procedure § 1083 (3d ed. 2002 & Supp.

2

2003)).

3

“So long as a party receives sufficient notice of the

4

complaint, Rule 4 is to be ‘liberally construed’ to uphold

5

service.”

6

1132, 1135 (9th Cir. 2009) (quoting Chan v. Soc’y Expeditions,

7

Inc., 39 F.3d 1398, 1404 (9th Cir. 1994)).

8

actual notice nor simply naming the defendant in the complaint

9

will provide personal jurisdiction absent ‘substantial compliance

United States District Court
For the Northern District of California

10

Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d

with Rule 4.’”

11

However, “neither

Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986).

Federal Rule of Civil Procedure 4(c)(2) provides, “Any person

12

who is at least 18 years old and not a party may serve a summons

13

and complaint.”

14

of the summons and of the complaint to the individual personally;

15

(B) leaving a copy of each at the individual’s dwelling or usual

16

place of abode with someone of suitable age and discretion who

17

resides there; or (C) delivering a copy of each to an agent

18

authorized by appointment or by law to receive service of

19

process.”

20

authorize service by mail.

21

manner allowed by state law.

It may be carried out by “(A) delivering a copy

Fed. R. Civ. P. 4(e)(2).

Rule 4(e)(2) does not

Service may also be carried out in any
Fed. R. Civ. P. 4(e)(1).

22

DISCUSSION

23

Plaintiff appears to contend that he carried out service

24

properly pursuant to each subsection of Rule 4(e)(2) and to state

25

law.

26

substantially complied with any of these.

27

here have been carried out by Plaintiff himself.

28

Plaintiff is a party to this action, his attempts at service were
5

However, Plaintiff has not offered evidence that he has
All attempts at service
Because

1

ineffective and were not in substantial compliance with Rule 4.

2

See Fed. R. Civ. P. 4(c)(2); see also Cal. Civ. Proc. § 414.10 (“A

3

summons may be served by any person who is at least 18 years of

4

age and not a party to the action.”).

5

claims to have perfected service pursuant to Rule 4(e)(2)(A) and

6

(B), Plaintiff has not offered any evidence that he served

7

Officers Barber, Smith and Tang personally or that he left a copy

8

of the summons and complaint at their dwellings or usual places of

9

abode with individuals of suitable age and discretion who reside

In addition, insofar as he

United States District Court
For the Northern District of California

10

there.

11

copy of the summons and complaint to an agent of theirs authorized

12

by appointment or by law to receive service of process, Defendants

13

have offered proof that neither Mr. Porth nor Ms. Lee was so

14

authorized and Plaintiff has offered no proof to the contrary.

15

Although he did not successfully deliver the summons and complaint

16

to Sergeant Wilson and Mrs. Shearer, Plaintiff has also not

17

offered proof that these individuals were authorized by law or

18

appointment to accept service of process, beyond his own

19

conclusory assertion.

20

argues that he properly served the San Francisco State University

21

Campus Police Department, this entity has not been named as a

22

Defendant in this case.

23

To the extent that Plaintiff contends that he delivered a

Finally, to the extent that Plaintiff

“Where service of process is insufficient, the court has the

24

option of dismissing the action or quashing the service and

25

retaining the case.”

26

LEXIS 37881, at *7 (N.D. Cal. 2010) (citation omitted).

27

“Generally service will be quashed in those cases in which there

28

is a reasonable prospect that the plaintiff will be able to serve
6

O’Haire v. Napa State Hosp., 2010 U.S. Dist.

1

the defendant properly.”

2

citations omitted).

3

in compliance with federal or state law, there is a reasonable

4

prospect that he will serve Defendants properly.

5

QUASHES service of process on Officers Barber, Smith and Tang and

6

grants Plaintiff one more opportunity to serve them properly.

7

Because the 120-day deadline for service has passed while this

8

motion was under submission, the Court finds good cause to extend

9

that deadline until thirty days from the date of this Order.

Id. (internal quotation marks and

Although Plaintiff did not complete service

Thus, the Court

United States District Court
For the Northern District of California

10

CONCLUSION

11

Accordingly, the Court GRANTS Defendants’ motion to quash

12

service (Docket No. 18) and QUASHES service upon Officers Barber,

13

Smith and Tang.

14

of process upon these Defendants until thirty days from the date

15

of this Order.

16

service upon each of these Defendants or a motion for additional

17

time in which to serve them, in which he provides good cause for

18

the failure to serve them within the allowed time period.

19

Plaintiff’s failure to comply with the terms of this Order will

20

result in dismissal of his claims for failure to prosecute.

21

The Court also EXTENDS the deadline for service

By that date, Plaintiff must file either proof of

Plaintiff shall not attempt to serve the summons and

22

complaint upon any individual or entity that is not named in his

23

complaint.

24

IT IS SO ORDERED.

25
26
27

Dated: 2/27/2013

CLAUDIA WILKEN
United States District Judge

28
7