Hansen et al v. County of San Diego et al
Filing
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ORDER denying Defendant's Motion to Dismiss, or in the Alternative to Quash Service of Process. Signed by Judge John A. Houston on 6/11/2018. (All non-registered users served via U.S. Mail Service)(jjg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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RICHARD MARK HANSON, S.H, a
minor,
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ORDER DENYING DEFENDANT’S
MOTION TO DISMISS, OR IN THE
ALTERNATIVE TO QUASH
SERVICE OF PROCESS
Plaintiffs,
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Case No.: 18-cv-0689-JAH-MDD
v.
COUNTY OF SAN DIEGO; SAN
DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY; SAN
DIEGO POLICE DEPARTMENT; and
DOES 1–100,
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Defendants.
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Pending before the Court is Defendant County of San Diego’s (“County”) Motion
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to Dismiss Plaintiffs’ complaint, or in the alternative to Quash Service of Process pursuant
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to Federal Rules of Civil Procedure 12(b)(5). [Doc. No. 13]. After a careful review of the
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pleadings filed by both parties, and for the reasons set forth below, Defendant’s Motion is
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DENIED.
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“A federal court is without personal jurisdiction over a defendant unless the
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defendant has been served in accordance” with Rule 4 of the Federal Rules of Civil
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Procedure. S.E.C. v. Ross, 504 F.3d 1130 (9th Cir. 2007). Once service is challenged, the
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plaintiff bears the burden of establishing sufficiency of process. Brockmeyer v. May, 383
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18-cv-0689-JAH-MDD
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F.3d 798, 801 (9th Cir. 2004). Rule 4 of the Federal Rules of Civil Procedure governs
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service of process. Although Rule 4 is a flexible rule that should be liberally construed,
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“neither actual notice nor simply naming the defendant in the complaint will provide
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personal jurisdiction absent ‘substantial compliance with Rule 4.” Benny v. Pipes, 799 F.2d
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489, 492 (9th Cir. 1986). Federal Rule of Civil Procedure 4(j)(2), which governs service
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of process on local government entities, provides: “A state, a municipal corporation, or any
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other state-created governmental organization that is subject to suit must be served by . . .
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delivering a copy of the summons and of the complaint to its chief executive officer.”
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Fed.R.Civ.P. 4(j)(2)(A). Alternatively, Rule 4(j)(2)(B) authorizes service in a manner
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“prescribed by that state’s law for serving a summons or like process on such a defendant.”
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Under California law, a plaintiff properly effects service of process on a public agency by
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serving a “clerk, secretary, president, presiding officer, or other head of its governing
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body.” Cal.Civ.Proc.Code § 416.50(a).
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The summons in this case were issued on April 6, 2018. Doc. No. 2. On April 10,
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2018, the office of the County Counsel was notified that a copy of the summons and
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complaint had been delivered to the County’s Auditor and Controller’s office located at
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1600 Pacific Highway, Room 106, San Diego, CA 92101. Doc. No. 13–2, ¶ 3. This
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municipal department is not authorized to accept service on behalf of the County. Id. at ¶
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4. The Office of County Counsel sent Plaintiffs’ a letter advising them that the attempted
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service was improper, and referring them to the applicable statutes relating to service. Id.
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at ¶ 7. The County asserts they have yet to be properly served and there has been no
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subsequent proof of service filed to the Court. See Doc. No. 13–1, pg. 2.
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The County argues, and this Court agrees, that Plaintiffs’ failed to fully comply with
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Federal Rule of Civil Procedure 4(j) and California Civ.Proc.Code § 416.50(a).
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Nevertheless, the Court finds that service was proper based on Plaintiffs’ substantial
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compliance with Rule 4 and the Office of County Counsel’s notice of the complaint. “Rule
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4 is a flexible rule that should be liberally construed so long as a party receives sufficient
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notice of the complaint.” Direct Mail Specialists, Inc. v. Eclat Computerized Technologies,
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18-cv-0689-JAH-MDD
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Inc., 840 F.2d 685, 688 (9th Cir.1988) (citation omitted); see also Top Form Mills, Inc. v.
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Sociedad Nationale Industria Applicazioni Viscosa, 428 F.Supp. 1237, 1251
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(S.D.N.Y.1977) (“[I]t must be borne in mind that compliance with the rules governing
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service of process is to be construed in a manner reasonably calculated to effectuate their
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primary purpose: to give the defendant adequate notice that an action is pending.”)
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(citations omitted). The County argues that Plaintiffs’ defective service would hinder its
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ability to adequately defend against a motion for preliminary injunction, which was
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pending at the time this motion was filed. Doc. No. 13–1, pg. 5. Plaintiffs’ motion for
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preliminary injunction was subsequently denied [Doc. No. 19], thus there is no perceptible
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prejudice. Crane v. Batelle, 127 F.R.D. 174, 178 (S.D.Cal.1989) (denying defendant’s
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motion to quash because a mistake was innocent, prejudice was insubstantial, and
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defendant had sufficient notice).
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CONCLUSION AND ORDER
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant’s Motion to Dismiss, or in the alternative to Quash
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Service of Process is DENIED;
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2. The hearing date scheduled June 18, 2018 is VACATED;
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3. Pursuant to Rule 12(a)(4), Defendant’s answer is due within 14
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days from the date of this order.
IT IS SO ORDERED.
DATED:
June 11, 2018
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_________________________________
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JOHN A. HOUSTON
United States District Judge
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