Parker v. Clingerman

Filing 7

ORDER Striking 3 Return of Summons filed by Guy W. Parker: Because plaintiff has not properly effectuated service of process on defendant under either federal or state law, plaintiffs return of service is STRICKEN from the record and will not be the basis for any deadline for defendant to act unless and until proper service of process has been effectuated. Signed by Judge M. James Lorenz on 2/12/2008. (mjj)

Parker v. Clingerman

Doc. 7

Case 3:08-cv-00212-L-WMC

Document 7

Filed 02/12/2008

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1 2 3 4 5 6 7 8 9 10 11 GUY W. PARKER, 12 13 v. 14 BETTY W. CLINGERMAN, 15 16 17 Defendant. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv212 L(WMc) ORDER STRIKING RETURN OF SUMMONS [doc. #3] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Plaintiff Guy W. Parker, appearing pro se, filed a return of service on February 8, 2008

18 [doc. #3]. In reviewing the return of service, the Court notes several deficiencies that make 19 service of process upon defendant ineffective. 20 On the second page of the return of service, plaintiff has checkmarked the method of

21 services as "Other (specify): Employee as a private citizen Certified Mail: Government Agency: 22 Place of Employment: FRCP Rule 5: `Other Papers'" Federal Rule of Civil Procedure 5 is 23 directed to service of filings made after service of the summons and Complaint and not to 24 service of the summons and Complaint. Rule 5 provides in relevant part: 25 26 27 28 (a) Service: When Required. (1) In General. Unless these rules provide otherwise, each of the following papers must be served on every party: ... (B) a pleading filed after the original complaint, . . . .
08cv212

Dockets.Justia.com

Case 3:08-cv-00212-L-WMC

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Filed 02/12/2008

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1

Federal Rule of Civil Procedure 4 is directed to service of the summons and Complaint

2 and therefore, is the applicable rule in the present situation. Rule 4(e) concerns service of process 3 on an individual within a judicial district of the United States: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FED. R. CIV. P. 4(e). Plaintiff's attempted service of the summons and Complaint by United States Postal Service Express Mail upon defendant does not comply with Federal Rule of Civil Procedure 4(e)(2) and is ineffective. The Federal Rules of Civil Procedure do not provide for service of process by mail. Additionally, plaintiff mailed the summons and Complaint to defendant's place of employment rather than her "dwelling or usual place of abode." But Rule 4(e)(1) also permits service of the summons and Complaint by following state law. California's service of process rules are found in its Code of Civil Procedure § 415.10 et seq.. Section § 415.30 provides for service by mail: (a) A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender. CAL. CODE CIV. P. § 415.30(a)(emphasis added). Plaintiff does not indicate that he included two copies of the notice and acknowledgment required under this rule in his mailing of the summons and Complaint to defendant. Plaintiff's mere mailing of the summons and Complaint to defendant's place of employment is insufficient
2 Unless federal law provides otherwise, an individual ­ other than a minor, an incompetent person, or a person whose waiver has been filed ­ may be served in a judicial district of the United States by: (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

08cv212

Case 3:08-cv-00212-L-WMC

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1 under California law. As § 415.30(c) makes clear: "Service of a summons pursuant to this 2 section is deemed complete on the date a written acknowledgment of receipt of summons is 3 executed, if such acknowledgment thereafter is returned to the sender." Plaintiff has not filed 4 such an acknowledgment obtained from and executed by defendant. Thus, plaintiff's attempt to 5 effectuate service under California law is ineffective. 6 Further, plaintiff has attempted to serve defendant with the summons and Complaint by

7 himself. Federal Rule of Civil Procedure 4(c)(2) provides that service may be made by "[a]ny 8 person who is at least 18 years old and not a party . . .." FED. R. CIV. P. 4(c)(2) (emphasis 9 added). Because Guy W. Parker is a party, i.e., the plaintiff in this action, he may not serve the 10 defendant. 11 Because plaintiff has not properly effectuated service of process on defendant under

12 either federal or state law, plaintiff's return of service [doc. #3] is STRICKEN from the record 13 and will not be the basis for any deadline for defendant to act unless and until proper service of 14 process has been effectuated. 15 IT IS SO ORDERED.

16 DATED: February 12, 2008 17 18 19 20 COPY TO: 21 HON. WILLIAM McCURINE UNITED STATES MAGISTRATE JUDGE 22 23 ALL PARTIES/COUNSEL 24 25 26 27 28
3
08cv212

M. James Lorenz United States District Court Judge