Kassab et al v. US Department of Agriculture et al

Filing 29

ORDER Granting 23 Motion to Set Aside Default; Denying 24 Motion to Dismiss; Denying 27 Motion to Dismiss; and Ordering Plaintiffs to Serve Defendants. The parties shall appear before the Court for a show cause hearing on 9/10/2012 at 2:00 PM before Judge Barry Ted Moskowitz. The Clerk shall set aside the 22 Entry of Default entered against Defendant USDA. Signed by Judge Barry Ted Moskowitz on 7/16/2012.(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GEORGE M. KASSAB, et al.,

Case No. 11cv01530 BTM (WMc)
Plaintiffs,

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ORDER GRANTING MOTION TO
SET ASIDE DEFAULT, DENYING
MOTIONS TO DISMISS, AND
ORDERING PLAINTIFFS TO SERVE
DEFENDANTS

v.
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UNITED STATES DEPARTMENT OF
AGRICULTURE, et al.,

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Defendants.

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Pending before the Court are Defendants’ Motion to Set Aside Default (Doc. 23), first

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Motion to Dismiss (Doc. 24), and second Motion to Dismiss (Doc. 27). For the reasons set

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forth herein, the Court GRANTS the Motion to Set Aside Default, DENIES the Motions to

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Dismiss, and ORDERS Plaintiffs to serve all Defendants within 45 days of the entry of this

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Order in the manner prescribed by Federal Rule of Civil Procedure 4. The Court also

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ORDERS the parties to appear before the Court for a show cause hearing on Monday,

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September 10, 2012, at 2:00 p.m.

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a.

Motion to Set Aside Default

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Defendants argue that Defendant United States Department of Agriculture (“USDA”)

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was improperly served, and that the entry of default against Defendant USDA should

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therefore be set aside. The Court agrees, and GRANTS the Motion to Set Aside Default.

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See Mason v. Genisco Technology Corp., 960 F.2d 849, 851 (9th Cir. 1992) (holding that

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improper service presents good cause to set aside entries of default). The Clerk shall set

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aside the default entered against Defendant USDA (Doc. 22).

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b.

Motions to Dismiss

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The Motions to Dismiss are also based entirely on Defendants’ allegations of improper

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service. In their first Motion to Dismiss, filed on December 22, 2011, Defendants claimed

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that Plaintiffs had not properly served the individual defendants because Plaintiffs had served

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a copy of the summons and complaint on neither the United States Attorney’s Office nor the

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United States Attorney General’s Office. On February 28, 2012, Plaintiffs filed a certificate

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of service (Doc. 26), showing that Plaintiffs served a copy of the summons and complaint on

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the United States Attorney’s Office for the Southern District of California. In their second

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Motion to Dismiss, filed April 13, 2012, Defendants argued that Plaintiffs still had not served

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a summons and complaint on the United States Attorney General’s Office. Defendants also

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argued that Defendant Flowers was not properly served in her individual capacity because

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Defendant Keh, the party that Plaintiffs actually served, was not authorized to receive service

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for Defendant Flowers in her individual capacity. Defendants also alleged that Defendant

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Wilusz never received service.

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Where a plaintiff has not served a defendant within the 120-day period prescribed by

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Federal Rule of Civil Procedure 4(m), the Court has discretion either to “dismiss the action

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without prejudice against that defendant or order that service be made within a specified

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time.” The Court declines to dismiss this case as a result of the previous defects in Plaintiffs’

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efforts to serve Defendants, and accordingly DENIES both Motions to Dismiss. The Court

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ORDERS that Plaintiffs must serve all Defendants within 45 days of the entry of this Order.

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The Court further ORDERS that the parties shall appear before the Court on Monday,

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September 10, at 2:00 p.m., and ORDERS Plaintiffs to show cause at the September 10
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hearing why this case should not be dismissed for failure to effectuate service.

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c.

Instructions for Service

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Federal Rule of Civil Procedure 4(i)(1) sets forth the service requirements for United

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States agencies, and Rule 4(i)(2) sets forth the service requirements for United States

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officers and employees sued in their official capacities. Rule 4(i)(3) sets forth the service

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requirements for United States officers and employees sued in their individual capacities.

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To be absolutely clear, in order to serve Defendants properly, Plaintiffs must do the

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following with respect to each Defendant:

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Defendant United States Department of Agriculture. Plaintiff must serve a copy of the

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summons and complaint on each of the following:

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The United States Attorney’s Office for the Southern District of California. This
Plaintiffs have already done (Doc. 26).

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The United States Attorney General’s Office, by registered or certified mail.
This Plaintiffs have not done.

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The United States Department of Agriculture, by registered or certified mail.
This Plaintiffs have done. (Doc. 16).

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Individual defendants in their official capacities (Jocelyn J. Keh, Sylvia Flowers, Daniel

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Wilusz). Plaintiff must serve a copy of the summons and complaint on each of the following:

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The United States Attorney’s Office for the Southern District of California. This
Plaintiffs have already done (Doc. 26).

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The United States Attorney General’s Office, by registered or certified mail.
This Plaintiffs have not done.

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Each individual defendant, by registered or certified mail. This Plaintiffs have
not done.

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Individual Defendants sued individually (Jocelyn J. Keh, Sylvia Flowers, Daniel Wilusz). Rule

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4(i)(3) requires that Plaintiffs serve the individual defendants sued individually in the manner

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prescribed by either Rule 4(e) (“Serving an Individual Within a Judicial District of the United

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States”), Rule 4(f) (“Serving an Individual in a Foreign Country”), or Rule 4(g) (“Serving a

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Minor or Incompetent Person”). Unless the individual Defendants are in a foreign country,

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or are either minors or incompetent persons, Rule 4(e) is the applicable provision. Rule 4(e)

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permits service of individuals within a judicial district in the United States by:

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(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

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doing any of the following:

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(A)

delivering a copy of the summons and of the
complaint to the individual personally; OR

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leaving a copy of each at the individual’s dwelling
or usual place of abode with someone who is of
suitable age and discretion who resides there; OR

(C)

delivering a copy of each to an agent authorized
by law to receive service of process.

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It appears that Plaintiffs have properly served Defendant Keh in her individual capacity by

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personally serving on her a copy of the summons and complaint (Doc. 15). Plaintiffs

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attempted to serve Defendant Flowers by serving Defendant Keh, claiming Defendant Keh

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is authorized to accept service on behalf of Defendant Flowers (Doc. 17). However,

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Defendant Keh is not authorized to accept service for Defendant Flowers (Keh Decl., Doc.

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27-3, at ¶ 3), and thus Defendant Flowers has not been properly served. There is no

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evidence in the record that Defendant Wilusz has been served. Accordingly, Plaintiffs still

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must served Defendants Flowers and Wilusz in the manner prescribed above.

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CONCLUSION

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For the reasons set forth above, the Court GRANTS the Motion to Set Aside Default

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(Doc. 23), DENIES the Motions to Dismiss (Docs. 24 and 27), and ORDERS Plaintiffs to

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serve all Defendants within 45 days of the entry of this Order in the manner prescribed by

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Federal Rule of Civil Procedure 4. The Court also ORDERS the parties to appear before the

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Court on Monday, September 10, 2012, at 2:00 p.m.

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The Clerk shall set aside the default entered against Defendant USDA (Doc. 22).

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IT IS SO ORDERED.

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DATED: July 16, 2012

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BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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