Acedo Peralta v. Quality Enterprises LLC

• Court: District Court, E.D. Washington
• Decided: August 13, 2024
• Docket: 4:24-cv-05048
• Status: Unknown

Opinion

1 EASTERU N. S D. I F SDI TLI RSE ITD CR TIIN C O TT F H C WEO AU SR HT I NGTON

2 Aug 13, 2024 3 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT 4 5 EASTERN DISTRICT OF WASHINGTON ISAAC ARNULFO ACEDO No. 4:24-CV-05048-ACE 6 PERALTA, 7 ORDER GRANTING DEFENDANTS’ 8 Plaintiff, MOTION TO DISMISS

9 v. 10 ECF Nos. 10, 11, 13 QUALITY ENTERPRISES LLC, 11 d.b.a., QUALITY CLEANING, a 12 Washington Limited Liability Company, 13

14 Defendant. 15 16 BEFORE THE COURT is Defendant’s June 21, 2024 Motion to Dismiss, 17 pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). ECF No. 10. 18 Plaintiff has also filed a motion requesting “the rebellion be left in effect” and that 19 he be given the opportunity to present the case before the Court, ECF No. 11, a 20 motion “demonstrating the defendant reprisals,” ECF No. 13, an opposition to 21 Defendant’s motion to dismiss, ECF No. 14, and a “First Amendment Complaint,” 22 ECF No. 17, with accompanying “Amended and Supplemental Pleadings,” ECF 23 No. 18. Plaintiff has also submitted an ex parte document asking that the Court not 24 dismiss the lawsuit. ECF No. 12. Defendant has filed a reply to the motion to 25 dismiss, ECF No. 15, and an opposition to Plaintiff’s motion “that the rebellion be 26 left in effect” ECF No. 16. Defendant is represented by Samantha L. Jetton; 27 Plaintiff appears pro se. Defendant’s motion to dismiss was noted for hearing, 28 without oral argument, on August 12, 2024. 1 DISCUSSION

2 A. Motion to Dismiss for Insufficient Service of Process - - Defendant 3 Quality Enterprises LLC, doing business as, Quality Cleaning 4 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5) 5 concerns the service of the summons and complaint. “In the absence of service of 6 process (or waiver of service by the defendant), a court ordinarily may not exercise 7 power over a party the complaint names as defendant.” Omni Capital Int’l, Ltd. v. 8 Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987) (“Before a federal court may 9 exercise personal jurisdiction over a defendant, the procedural requirement of 10 service of summons must be satisfied.”); Mississippi Publ’g Corp. v. Murphree, 11 326 U.S. 438, 444-445 (1946) (“[S]ervice of summons is the procedure by which a 12 court having venue and jurisdiction of the subject matter of the suit asserts 13 jurisdiction over the person of the party served.”). Rule 12(b)(5) authorizes 14 dismissal based on insufficient service of process. 15 “A federal court is without personal jurisdiction over a defendant unless the 16 defendant has been served [with the summons and complaint] in accordance with 17 Fed. R. Civ. P. 4.” Crowley v. Bannister, 734 F.3d 967, 974-975 (9th Cir. 2013) 18 (citation and internal quotation marks omitted); Travelers Cas. & Sur. Co. of Am. 19 v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009). Rule 4(c) requires that a 20 “summons must be served with a copy of the complaint” and that “[t]he plaintiff is 21 responsible for having the summons and complaint served within the time allowed 22 by Rule 4(m).” Fed. R. Civ. P. 4(c)(1). ‘“Rule 4 is a flexible rule that should be 23 liberally construed so long as a party receives sufficient notice of the complaint.”’ 24 Whidbee v. Pierce Cnty., 857 F.3d 1019, 1023 (9th Cir. 2017) (citation omitted). 25 “Nonetheless, without substantial compliance with Rule 4 ‘neither actual notice 26 nor simply naming the defendant in the complaint will provide personal 27 jurisdiction.”’ Direct Mail Specialists, Inc. v. Eclat Computerized Tech., 840 F.2d 28 685, 688 (9th Cir. 1988) (quoting Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986), 1 amended by, 807 F.2d 1514 (9th Cir.), cert. denied, 484 U.S. 870 (1987)). “Once 2 service is challenged, [P]laintiff[ ] bear[s] the burden of establishing that service 3 was valid under Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). 4 In order to properly serve an unincorporated association, a plaintiff must 5 deliver a copy of the summons and complaint to “an officer, a managing or general 6 agent, or any other agent authorized by appointment or by law to receive service of 7 process,” Fed. R. Civ. P. 4(h)(1)(B), and, pursuant to Fed. R. Civ. P. 4(m), a 8 plaintiff must effectuate service within 90 days after the complaint is filed. 9 Plaintiff filed his complaint in this action on May 3, 2024. ECF No. 1. Joel 10 Jimenez, a senior manager at Quality Cleaning, was served by a sheriff at his 11 personal residence on May 7, 2024. See ECF No. 10-1 ¶¶ 1-3. However, the only 12 document served on Mr. Jimenez was the summons. ECF No. 10-1 ¶ 3; ECF No. 13 8. Because a copy of the complaint was not served upon Mr. Jimenez, service was 14 improper, see Fed. R. Civ. P. 4(h)(1)(B), and, given that more than 90 days have 15 elapsed since Plaintiff filed his complaint, Plaintiff has failed to effectuate service 16 upon Quality Cleaning within the time allowed by Rule 4(m).1 Therefore, 17 Defendants’ motion to dismiss for insufficient service of process (Fed. R. Civ. P. 18 12(b)(5)) shall be granted and Plaintiff’s complaint shall be dismissed, without 19 prejudice, as to Defendant Quality Cleaning.

20 B. Motion to Dismiss for Failure to State a Claim - - Joel Jimenez, 21 Atilano Sinthia, Gabriel Gutierrez, and Ryan Cook 22 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) 23 concerns the failure to state a claim upon which relief can be granted. To survive a 24

25 1Plaintiff has filed no specific response or otherwise challenged Defendant’s 26 motion to dismiss for insufficient service of process. See LCivR 7.1(e) (the failure 27 to properly respond to a motion may be deemed consent to the entry of an order 28 adverse to the party). 1 Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual 2 matter, accepted as true, to state a claim for relief that is plausible on its face. 3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has facial plausibility when 4 the plaintiff pleads factual content that allows the court to draw the reasonable 5 inference that the defendant is liable for the misconduct alleged. Id. Plaintiff is 6 obligated to provide grounds for his entitlement to relief that amount to more than 7 labels and conclusions or a formulaic recitation of the elements of a cause of 8 action. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). The Court “may 9 generally consider only allegations contained in the pleadings, exhibits attached to 10 the complaint, and matter properly subject to judicial notice” when ruling on a 11 motion to dismiss. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 12 1030-1031 (9th Cir. 2008) (internal quotation and citation omitted). 13 If the Court dismisses the complaint, or portions thereof, it must consider 14 whether to grant leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 15 2000). “A district court should not dismiss a pro se complaint without leave to 16 amend unless ‘it is absolutely clear that the deficiencies of the complaint could not 17 be cured by amendment.’” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) 18 (internal citations and quotation omitted). Leave to amend is not appropriate, even 19 given the liberal pleading standard for pro se litigants, when “the pleading ‘could 20 not possibly be cured by the allegation of other facts.’” Ramirez v. Galaza, 334 21 F.3d 850, 861 (9th Cir. 2003) (internal quotation omitted). 22 Although not named as defendants in the caption of the complaint, Joel 23 Jimenez and Sinthia Atilano are described as defendants in the body of the 24 complaint and named in the summons. See ECF Nos. 1 & 3. Gabriel Gutierrez is 25 neither named in the caption of the complaint nor described as a defendant in the 26 body of the complaint but is listed as a defendant in the summons. Id. Plaintiff’s 27 recent filings name Gabriel Gutierrez and Ryan Cook, CEO of Quality Cleaning, 28 as defendants. See ECF Nos. 17-18. In any event, the Ninth Circuit has held that 1 there is no individual liability under Title VII of the Civil Rights Act of 1964. 2 Miller v. Maxwell’s International Inc., 991 F.2d 583, 587-588 (9th Cir. 1993) 3 (“[T]his court’s ruling in Padway [v. Palches, 665 F.2d 965 (9th Cir. 1982)] that 4 individual defendants cannot be held liable for damages under Title VII is good 5 law.”); Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1179 (9th Cir. 2003) (“[W]e 6 have consistently held that Title VII does not provide a cause of action for 7 damages against supervisors or fellow employees.”). Furthermore, Plaintiff’s 8 complaint fails to contain a facially plausible claim for relief with respect to each 9 named individual defendant. See Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 10 at 570). Consequently, Defendants’ motion to dismiss for failure to state a claim 11 (Fed. R. Civ. P. 12(b)(6)) shall be granted as to Joel Jimenz, Sinthia Atilano, 12 Gabriel Gutierrez, and Ryan Cook. 13 The Court must consider whether to grant the pro se Plaintiff leave to amend 14 a deficient complaint. See Ramirez, 334 F.3d at 861. To the extent Plaintiff has 15 already attempted to amend the complaint with the filing of his “First Amendment 16 Complaint,” ECF No. 17, the only noted changes in the new pleading are the 17 addition of Gabriel Gutierrez and Ryan Cook as named defendants. Because Title 18 VII does not provide a cause of action for damages against supervisors or 19 coworkers, the complaint cannot be cured by amendment with respect to Joel 20 Jimenz, Sinthia Atilano, Gabriel Gutierrez, and Ryan Cook.2 Accordingly, leave to 21 amend is not appropriate in this case. 22 /// 23 ///

25 2Plaintiff’s opposition to Defendant’s motion to dismiss and “Amended and 26 Supplemental Pleadings” further demonstrates that Joel Jimenz, Sinthia Atilano, 27 Gabriel Gutierrez, and Ryan Cook are supervisors for Quality Cleaning. See ECF 28 Nos. 14 & 18. 1 C. Motion Requesting that the Rebellion Be Left in Effect Plaintiff's “Motion Requesting that the Rebellion Be Left in Effect” appears to suggest that since Defendant’s response to Plaintiff’s complaint was untimely, A the Court should enter a default judgment against Defendant. ECF No. 11. 5 As discussed in Section A above, service was insufficient in this case. 6 Consequently, the 21-day period to answer Plaintiff's complaint has never been 7 triggered. Entry of default judgment against Defendant is not warranted. 8 CONCLUSION 9 Based on the foregoing, IT IS HEREBY ORDERED: 10 1. Defendant’s Motion to Dismiss, ECF No. 10, is GRANTED. ll 2. Plaintiff's Motion Requesting that the Rebellion Be Left in Effect, 2 ECF No. 11, is DENIED. 13 3. Plaintiffs’ Complaint, ECF No. 1, is DISMISSED WITHOUT 14 PREJUDICE with respect to Quality Enterprises LLC, doing business as, Quality 15 Cleaning and DISMISSED WITH PREJUDICE with respect to Joel Jimenz, 16 Sinthia Atilano, Gabriel Gutierrez, and Ryan Cook. U7 4. Defendant’s Motion Demonstrating the Defendant Reprisals, ECF 18 No. 13, is DENIED AS MOOT. 19 IT IS SO ORDERED. The District Court Executive is directed to file this 0 Order, provide a copy to Plaintiff and counsel for Defendant, and CLOSE THE 51 || FILE. 09 DATED August 13, 2024. 23 Clagpber C Shim 24 ade ALEXANDER C. EKSTROM 25 —_ UNITED STATES MAGISTRATE JUDGE 26 27 28