Alhajjar v. Department of Homeland Security

Filing 12

ORDER (1) Quashing Service of 11 Amended Complaint; and (2) Granting Plaintiff an Extension to Serve. Signed by Judge Janis L. Sammartino on 6/6/2018.(All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BASHAR J. ALHAJJAR,

Case No.: 16-CV-1445 JLS (MDD)
Plaintiff,

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ORDER (1) QUASHING SERVICE
OF AMENDED COMPLAINT; AND
(2) GRANTING PLAINTIFF AN
EXTENSION TO SERVE

v.
DEPARTMENT OF HOMELAND
SECURITY,

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Defendant.

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Plaintiff filed a Complaint against the Department of Homeland Security (“DHS”)

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in June 2016. Plaintiff did not file a proof of service indicating he had served his

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Complaint. In March 2018, this Court set a hearing for want of prosecution pursuant to

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Civil Local Rule 41.1. (ECF No. 8). Plaintiff appeared, and the Court granted Plaintiff

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until May 7, 2018 to serve Defendant. (ECF No. 9.) On May 7, 2018, Plaintiff filed an

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amended complaint and attached a “Certificate of Service” certifying that the attached

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documents were sent to a representative of Defendant via fax and certified mail. (ECF No.

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11.)

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The Court QUASHES Plaintiff’s service of process for the reasons set forth below.

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See Stevens v. Security Pac. Nat’l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976) (“The choice

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between dismissal and quashing service of process is in the district court’s discretion.”).
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16-CV-1445 JLS (MDD)

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When serving an individual within a judicial district of the United States, a defendant

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may be served in accordance with state law governing service. Fed. R. Civ. P. 4(e)(1). In

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California, service of process on an individual inside the state may be accomplished

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through (1) personal delivery of the summons and complaint on the defendant or an

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authorized agent, Cal. Code Civ. Proc. § 415.10; (2) substitute service upon another person

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at the defendant’s residence or place of business, id. § 415.20; (3) mail service coupled

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with an acknowledgment of receipt, id. § 415.30; or (4) by publication, id. § 415.50.

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Plaintiff states he has mailed and faxed his amended complaint to Janet W. Muller

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at DHS. (ECF No. 11, at 21.) California law does not expressly allow service by fax, so

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the Court analyzes Plaintiff’s service by mail. Under section 415.30: “A summons may be

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served by mail as provided in this section. A copy of the summons and of the complaint

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shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served,

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together with two copies of the notice and acknowledgment provided for in subdivision (b)

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and a return envelope, postage prepaid, addressed to the sender.” Cal. Code Civ. Proc.

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§ 415.30. There is no indication Plaintiff included the necessary documents in his service

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on Ms. Muller. (See ECF No. 11, at 21 (Plaintiff certifies that “the attached document(s)

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was (were) sent” and the only document attached is the amended complaint).)

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Further, there are specific procedures a plaintiff must follow when suing the United

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States. See Fed. R. Civ. P. 4(i). The plaintiff must deliver or send a copy of the summons

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and complaint to the United States attorney for the district where the action is brought and

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to the Attorney General of the United States. Fed. R. Civ. P. 4(i)(A) & (B). There is no

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indication Plaintiff has complied with these procedures.

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///

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16-CV-1445 JLS (MDD)

The Court therefore QUASHES Plaintiff’s Certificate of Service.

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The Court

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GRANTS Plaintiff an extension to June 27, 2018 in which to serve Defendant and file an

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appropriate proof of service with the Court. Failure to properly serve Defendant by this

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time may result in this case being dismissed pursuant to Federal Rule of Civil Procedure

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4(m).

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IT IS SO ORDERED.
Dated: June 6, 2018

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16-CV-1445 JLS (MDD)