Hoffman v. Lee et al

Filing 24

ORDER by Judge Lucy H. Koh denying 20 Motion to Dismiss (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 4/19/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PIERRE L. HOFFMAN,
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Plaintiff,
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v.
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CHARLES D. LEE, JOHN D. KASAWA,
and RN DAN JEANS,

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Defendants.

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No. C 10-2541 LHK (PR)
ORDER DENYING
DEFENDANT’S MOTION TO
DISMISS
(Docket No. 20)

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Plaintiff, a state prisoner proceeding pro se, filed an amended civil rights complaint
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pursuant to 42 U.S.C. § 1983. On November 24, 2010, the Court screened Plaintiff’s amended
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complaint, and ordered it served upon named Defendants. In its order of service, the Court
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directed Defendants to file a dispositive motion no later than February 22, 2011. On March 4,
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2011, Plaintiff filed a motion requesting the appropriate legal action and sanctions upon
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Defendants for failing to file their dispositive motion. On April 1, 2011, no Defendant having
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made an appearance, the Court construed Plaintiff’s motion as a motion for entry of default
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judgment against Kasawa, the only Defendant whose summons was returned executed. The
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Court denied the motion for entry of default and ordered Kasawa to show cause why a default
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judgment should not be entered against him. On April 12, 2011, Kasawa, through counsel, filed
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a motion to dismiss for insufficient service of process, under Federal Rule of Civil Procedure
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12(b)(5).
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The Court has looked into whether Kasawa has been served in this matter. In general, as
Order Denying Defendant’s Motion to Dismiss
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in all § 1983 prisoner cases filed in this Court, the United States Marshals Service mails to each

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of the Defendants at his place of business a summons and a copy of the complaint, as well as a

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notice and acknowledgment of receipt of summons. Upon receipt of the forms at the

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Defendant’s place of business (usually, the prison), the litigation coordinator forwards the

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appropriate forms for execution to the Defendant, along with a form for requesting

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representation by the California Attorney General’s Office. The Defendant signs the request for

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representation and forwards it, along with the summons, the complaint, and notice and

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acknowledgment form, to the Attorney General’s Office.

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In this case, both the declarations of the Deputy Attorney General assigned to this case

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and Defendant Kasawa demonstrate that they have acted in accordance with that accepted

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procedure. Pursuant to the customary practice of the Attorney General’s Office in section 1983

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prisoner cases in this Court, Kay Yu, the Deputy Attorney General assigned to the case next

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should have completed the acknowledgment of receipt of summons form on behalf of Kasawa,

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who requested representation, and then should have returned it to the Marshals Service. But that

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did not happen in this case. Instead, Deputy Attorney General Yu has filed a motion to dismiss

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the case for insufficient service of process. The motion argues that service was not properly

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executed on Kasawa despite his having received a copy of the summons and complaint at his

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place of business, and despite his having followed the customary practice of forwarding to the

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Attorney General’s Office an executed request for representation along with the summons,

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complaint, and notice and acknowledgment form for the assigned deputy attorney general to

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execute and return to the Marshals Service.

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“So long as a party receives sufficient notice of the complaint, Rule 4 is to be ‘liberally

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construed’ to uphold service.” Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132,

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1135 (9th Cir. 2009) (quoting Chan v. Soc’y Expeditions, Inc., 39 F.3d 1398, 1404 (9th Cir.

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1994)). “Sufficient service may be found where there is a good faith effort to comply with the

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requirements of Rule 4(e)(2) which has resulted in placement of the summons and complaint

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within the defendant’s immediate proximity and further compliance with Rule 4(e)(2) is only

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prevented by the defendant’s knowing and intentional actions to evade service.” Id. at 1136.
Order Denying Defendant’s Motion to Dismiss
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The Ninth Circuit applies a flexible approach to determine whether to permit the

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defective service to stand. In Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984), the Ninth

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Circuit adopted a rule permitting courts to overlook a non-compliant service of process provided

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that (1) the party to be served received actual notice, (2) the defendant would not be prejudiced

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by the defect in service, (3) there was a justifiable excuse for the failure to properly serve, and

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(4) the plaintiff would be severely prejudiced if the complaint were dismissed. Id.

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Kasawa does not argue that he did not have actual notice of the suit, or that he would be

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prejudiced by maintaining the action, and the Court finds that the first two prongs are therefore

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met. Plaintiff had a justifiable excuse for his failure to properly serve, in light of the customary

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practice of the Attorney General’s Office described above; Plaintiff’s pro se status; and

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Plaintiff’s reliance on the Marshals Service to serve Defendants on his behalf. Finally, while

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Plaintiff has not argued that he would be prejudiced if non-compliant service resulted in

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dismissal of the suit, it is clear that at least some prejudice would result. Dismissal and

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subsequent re-filing solely to perfect service of process would burden the resources of the parties

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and the Court.

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Given the complete lack of prejudice to Defendant, the fact that actual notice was clearly

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accomplished, and the apparent obfuscation on the part of Defendant in taking advantage of the

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customary practice of the Attorney General’s Office to declare a potential technical defect in

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service, the Court finds that Plaintiff substantially complied with Rule 4. See Travelers Cas. &

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Sur. Co. of Am., 551 F.3d at 1135-36.

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Thus, Defendant’s motion to dismiss for insufficient service is DENIED.

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For the foregoing reasons, the Court hereby orders as follows:

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1.

No later than forty-five (45) days from the date of this order, Defendant shall file

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a motion for summary judgment or other dispositive motion with respect to the cognizable

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claims in the amended complaint.

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a.

If Defendant elects to file a motion to dismiss on the grounds that Plaintiff

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failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a),

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Defendant shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315
Order Denying Defendant’s Motion to Dismiss
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F.3d 1108, 1119-20 (9th Cir. 2003).

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b.

Any motion for summary judgment shall be supported by adequate factual

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documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil

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Procedure. Defendant is advised that summary judgment cannot be granted, nor qualified

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immunity found, if material facts are in dispute. If Defendant is of the opinion that this

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case cannot be resolved by summary judgment, he shall so inform the Court prior to the

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date the summary judgment motion is due.

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2.

served on Defendant no later than thirty (30) days from the date Defendant’s motion is filed.

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a.

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In the event Defendant files an unenumerated motion to dismiss under

Rule 12(b), Plaintiff is hereby cautioned as follows:1
The defendants have made a motion to dismiss pursuant to Rule 12(b) of
the Federal Rules of Civil Procedure, on the ground you have not exhausted your
administrative remedies. The motion will, if granted, result in the dismissal of
your case. When a party you are suing makes a motion to dismiss for failure to
exhaust, and that motion is properly supported by declarations (or other sworn
testimony) and/or documents, you may not simply rely on what your complaint
says. Instead, you must set out specific facts in declarations, depositions, answers
to interrogatories, or documents, that contradict the facts shown in the defendant’s
declarations and documents and show that you have in fact exhausted your
claims. If you do not submit your own evidence in opposition, the motion to
dismiss, if appropriate, may be granted and the case dismissed.

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Plaintiff’s opposition to the dispositive motion shall be filed with the Court and

b.

In the event Defendant files a motion for summary judgment, the

Ninth Circuit has held that the following notice should be given to plaintiffs:
The defendants have made a motion for summary judgment by which they
seek to have your case dismissed. A motion for summary judgment under Rule
56 of the Federal Rules of Civil Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a motion for
summary judgment. Generally, summary judgment must be granted when there is
no genuine issue of material fact--that is, if there is no real dispute about any fact
that would affect the result of your case, the party who asked for summary
judgment is entitled to judgment as a matter of law, which will end your case.
When a party you are suing makes a motion for summary judgment that is
properly supported by declarations (or other sworn testimony), you cannot simply
rely on what your complaint says. Instead, you must set out specific facts in

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The following notice is adapted from the summary judgment notice to be given to pro se
prisoners as set forth in Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See
Wyatt v. Terhune, 315 F.3d at 1120 n.14.
Order Denying Defendant’s Motion to Dismiss
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declarations, depositions, answers to interrogatories, or authenticated documents,
as provided in Rule 56(e), that contradict the facts shown in the defendants’
declarations and documents and show that there is a genuine issue of material fact
for trial. If you do not submit your own evidence in opposition, summary
judgment, if appropriate, may be entered against you. If summary judgment is
granted in favor of defendants, your case will be dismissed and there will be no
trial.

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See Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). Plaintiff is advised to read

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Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317

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(1986) (holding party opposing summary judgment must come forward with evidence showing

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triable issues of material fact on every essential element of his claim). Plaintiff is cautioned that

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failure to file an opposition to Defendant’s motion for summary judgment may be deemed to be a

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consent by plaintiff to the granting of the motion, and granting of judgment against Plaintiff

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without a trial. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges v.

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Lewis, 18 F.3d 651, 653 (9th Cir. 1994).

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3.

Defendant shall file a reply brief no later than fifteen (15) days after Plaintiff’s

opposition is filed.
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The motion shall be deemed submitted as of the date the reply brief is due. No

hearing will be held on the motion unless the Court so orders at a later date.
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All communications by the Plaintiff with the Court must be served on

Defendant’s counsel, by mailing a true copy of the document to Defendant’s counsel.
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Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

No further Court order is required before the parties may conduct discovery.
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It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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and all parties informed of any change of address and must comply with the Court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

4/19/11
LUCY H. KOH
United States District Judge

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Order Denying Defendant’s Motion to Dismiss

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