Cooper v. Washington

• Court: District Court, D. Nevada
• Decided: October 13, 2022
• Docket: 2:21-cv-01847
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 MAURICE COOPER, Case No. 2:21-cv-01847-ART-DJA

6 Plaintiff, ORDER GRANTING MOTION TO v. DISMISS AND DENYING MOTION 7 FOR SUMMARY JUDGMENT ALISHA WASHINGTON, ET AL, 8 Defendants. 9 10 This is an action regarding the allegedly negligent assignment of Plaintiff 11 Maurice Cooper (“Cooper”) to reside at a particular address as a condition of his 12 supervised release. Cooper sues Chad Boardman (“Boardman”), Chief of the 13 United States Probation Office (“USPO”) and Alisha Washington (“Washington”), 14 Case Manager of Las Vegas Community Corrections Center (“LVCCC"). The 15 United States, acting on behalf of Boardman, has filed a motion to dismiss (ECF 16 No. 19) and a motion to stay (ECF No. 31.) LVMCC has likewise filed a motion to 17 dismiss. (ECF No. 23.) Cooper has filed a motion for summary judgment. (ECF 18 No. 11.) For the reasons stated below, this Court grants the Defendants’ motions 19 to dismiss and denies Plaintiff’s motion for summary judgment and the United 20 States’ motion to stay as moot. 21 I. BACKGROUND 22 Plaintiff Cooper sues Defendants for breach of contract and negligence 23 allegedly resulting from his housing placement following a term of incarceration. 24 (ECF No. 1-2 at 2.) 25 Specifically, Cooper alleges that—after serving a term of incarceration for 26 bank robbery—he was released on a federal furlough and entered LVCCC, where 27 he stayed until June 13, 2017. (ECF No. 1-2 at 9.) Washington was his case 28 manager at LVCCC. (Id.) Cooper alleges that LVCCC, through Washington, 1 instructed him to live at 1048 Hassell Avenue Las Vegas, Nevada 89106. (“1048 2 Hassell”) (Id.) Cooper further alleges that the conditions at 1048 Hassell were 3 unsanitary, that his mail was tampered with, and that the other occupants living 4 at 1048 Hassell were possibly drug users or convicted felons. (ECF No. 1-2 at 7- 5 8.) The felonious status of other residents of 1048 Hassell was of particular 6 concern to Cooper, he alleges, because the conditions of his supervised release 7 prohibited contact with persons convicted of a felony. (ECF No. 1-2 at 8.) Cooper 8 prays for compensatory damages of $15,000, general damages of $15,000, 9 statutory interest, and discretionary equitable relief. (ECF No. 1-2 at 9-10.) 10 Cooper initially filed his complaint in Nevada state court on September 9, 11 2021 and attempted to serve LVCCC and the Probation Office by mailing his 12 complaint via FedEx and the United States Postal Service. (ECF No. 1-2 at 2, 15.) 13 Twenty-six days later, on October 5, 2021, Cooper filed for default in state court, 14 but the clerk of court did not sign his entry of default. (ECF No. 8 at 3.) Default 15 was never entered in the state court proceeding. The next day, October 6, 2021, 16 the United States removed the case to federal court in accordance with 28 U.S.C. 17 §1442(a)(1). On October 12, 2021, LVCCC and Washington joined in the United 18 States’ removal. (ECF No. 6.) 19 On October 21, 2021, Cooper moved for summary judgment (ECF No. 11.) 20 In his motion, Cooper restates the identities of the parties, alleges that he served 21 the defendants via FedEx, and re-alleges the causes of action in his Complaint. 22 (ECF No. 11 at 2-4.) Citing his own default filing—unsigned by the clerk of court— 23 Cooper also alleges that defendants defaulted in the state court action. (ECF No. 24 11 at 2.) 25 On November 12, 2021, the United States, on behalf of Boardman, 26 responded to Cooper’s motion for summary judgment and moved to dismiss 27 Cooper’s Complaint. (ECF No. 19.) The United States argued that there were few 28 undisputed facts in this action, that Cooper’s efforts at service failed to comply 1 with Fed. R. Civ. P. 4(i)(2) & (3), and that this Court lacked subject matter 2 jurisdiction over: 1) Cooper’s breach of contract claim because the Court of 3 Federal Claims possesses exclusive jurisdiction over breach of contract claims 4 involving the United States in excess of $10,000; and 2) Cooper’s negligence claim 5 because Cooper did not exhaust his remedies under the Federal Tort Claims Act. 6 (ECF No. 19 at 3-7.) 7 On November 22, 2021, Defendants LVCCC and Washington also moved to 8 dismiss Cooper’s complaint. (ECF No. 23.) LVCCC and Washington argued that 9 Cooper’s negligence claim is barred by the statute of limitations, Cooper failed to 10 state a claim for breach of contract because he did not establish that a contract 11 between himself and LVCCC or Washington existed, and Cooper failed to properly 12 serve LVCCC or Washington. (ECF No. 23 at 5-8.) 13 II. ANALYSIS 14 Even if Cooper is correct that he was negligently released to 1048 Hassell, this 15 Court dismisses Cooper’s claims against all defendants as he failed to serve them 16 properly. 17 A. Legal Standard 18 “A federal court does not have jurisdiction over a defendant unless the 19 defendant has been served properly under Fed. R. Civ. P. 4.” Direct Mail 20 Specialists v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). 21 “[W]ithout substantial compliance with Rule 4 ‘neither actual notice nor simply 22 naming the defendant in the complaint will provide personal jurisdiction.’” Id. 23 (quoting Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986). Once service of 24 process is properly challenged, the plaintiff bears the burden of establishing that 25 service was valid under Rule 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 26 2004). Service is to be provided pursuant to the law of the forum state. See Fed. 27 28 1 R. Civ. P. 4(e)(1).1 District courts have broad discretion to either dismiss an action 2 entirely for failure to effectuate service or to quash the defective service and 3 permit re-service. See SHJ v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 4 (9th Cir. 2006) (“the district court has discretion to dismiss an action or quash 5 service”). 6 B. Cooper Failed To Properly Serve All Defendants In This Action 7 Cooper chose to serve all defendants in this action via FedEx and United 8 States Mail. (ECF No. 1-2 at 15.) Because service in this manner does not 9 substantially comply with Federal Rule of Civil Procedure 4 or Nevada Rule of 10 Civil Procedure 4, this Court grants Defendants’ motions to dismiss. 11 1. Cooper did not properly serve Defendant Boardman 12 Nevada’s Rules of Civil Procedure provide that service upon the United States 13 may be effectuated in accordance with Federal Rule of Civil Procedure 4. See 14 NRCP 4.3(5). Cooper’s mailing of the complaint, summons, and order to proceed 15 in forma pauperis to the Nevada Probation Office did not satisfy the specific 16 requirements of Federal Rule of Civil Procedure 4(i). Whether Cooper attempts to 17 sue Boardman in his official or individual capacity, Cooper must also serve the 18 United States. See Fed. R. Civ. P. 4(i)(2) (“To serve . . . a United States officer . . . 19 in an official capacity, a party must serve the United States . . . .”); 4(i)(3) (“To 20 serve a United States officer . . . in an individual capacity . . a party must serve 21 the United States . . . .”). To serve the United States, a party must 1) either deliver 22 a copy of the summons and the complaint to the United States attorney for the 23 district where the action is brought or their written delegee, or send a copy of the 24 summons and complaint via registered or certified mail to the civil-process clerk 25 at the United States attorney’s office; and 2) send a copy of the summons and 26 complaint to the Attorney General of the United States at Washington, D.C. See

27 1 The Nevada Rules of Civil Procedure provide that “[s]ervice upon the United States and its agencies, corporations, officers, or employees may be made as provided by Rule 4 of the Federal 28 Rules of Civil Procedure.” NRCP 4.3(5). 1 Fed. R. Civ. P. 4(i)(1)(A)(i), (ii) and 4(i)(1)(B). 2 Here, Cooper failed to serve the Summons and Complaint on the United States 3 Attorney for the District of Nevada or his designee, in accordance with Rule 4 4(i)(1)(A)(i), and also did not send the Summons and Complaint by certified mail 5 to the civil-process clerk at the United States attorney’s office in accordance with 6 Rule 4(i)(1)(A)(ii). In addition, Cooper did not send a copy of the Summons and 7 Complaint by registered or certified mail to the Attorney General of the United 8 States at Washington D.C. in accordance with Rule 4(i)(1)(B). Therefore, Cooper 9 has not substantially complied with Rule 4(i), and this Court grants the United 10 States’ Motion to Dismiss on behalf of Boardman for lack of personal jurisdiction. 11 (ECF No. 19.) 12 2. Cooper did not properly serve LVCCC or Washington 13 Cooper did not properly serve Washington. “As a general matter, state 14 procedural rules govern state lawsuits until they are removed to federal court.” 15 Prazak v. Loc. 1 Int'l Union of Bricklayers & Allied Crafts, 233 F.3d 1149, 1152 16 (9th Cir. 2000) (citing Herb v. Pitcairn, 324 U.S. 117, 120 (1945).) Therefore, this 17 Court evaluates Cooper’s method of service as to Washington under Nevada law 18 as it transpired prior to removal. As discussed above, Cooper mailed his 19 summons and complaint via FedEx and United States Postal Service. Service as 20 to Washington will only be proper if this method accords with Nevada’s own rules 21 for service of process. It does not. 22 Unless a defendant waives service of a summons, Nevada Rule of Civil 23 Procedure 4.2(a) requires service to be made on an individual either personally, 24 by leaving a copy of the summons and complaint at the individual’s residence 25 with a person of suitable age and discretion who lives there and is not an adverse 26 party, or by delivering a copy of the summons and complaint to an agent 27 authorized to receive service of process. See NRCP 4.2(a). Here, Cooper attempted 28 service of process via mail, and mail—standing alone—is not authorized by the 1 Nevada Rules of Civil Procedure for service upon an individual. Therefore, this 2 Court grants Defendants’ Washington and LVCCC’s Motion to Dismiss for lack of 3 personal jurisdiction as to Washington. (ECF No. 23.) 4 Cooper also did not properly serve LVCCC. Nevada Rule of Civil Procedure 5 4.2(c)(1)(A) governs service on entities and associates in Nevada. Nevada entities 6 or associations may be served by “delivering a copy of the summons and 7 complaint” to a number of enumerated agents, members, or partners. NRCP 8 4.2(c)(1)(A). Nevada Rule 4.2(c)(1)(A) does not authorize freestanding service of 9 process by mail against Nevada entities or associations. Id. 10 Because Cooper only attempted service of process via mail, this Court grants 11 Washington and LVCCC’s Motion to Dismiss for lack of personal jurisdiction as 12 to LVCCC. 13 3. Cooper’s additional arguments do not alter the outcome 14 Cooper cites Houston v. Lack for the proposition that the documents he 15 mailed—his complaint, summons, and order to proceed in forma pauperis—were 16 deemed filed when he dropped them off at the FedEx Office. 487 U.S. 266 (1988) 17 (ECF No. 1-2 at 15.) Houston, however, was limited to pro se prisoners, and 18 explicitly differentiated pro se prisoners from other civil litigants. Houston, 487 19 U.S. at 273 (“the lack of control of pro se prisoners over delays extends much 20 further than that of the typical civil litigant . . . their lack of freedom bars them 21 from delivering the notice to the court clerk personally.”) The Supreme Court 22 explicitly noted in Houston that it did not disturb the lower courts’ rejection of 23 “the general argument that a notice of appeal is ‘filed’ at the moment it is placed 24 in the mail. . . .” Id. at 274 (“To the extent these cases state the general rule in 25 civil appeals, we do not disturb them.”). Therefore, this Court finds that Houston 26 is not applicable in the present action. 27 Additionally, here Cooper’s pro se status does not alter the analysis because 28 “pro se status, alone, is not a justifiable excuse for the defect” in service of 1 process. Graham v. United States, 79 Fed. App’x. 992, 993 (9th Cir. 2003). 2 Likewise, Cooper’s constructive service on the defendants in this action—as 3 evidenced by their responses to his pleadings in this lawsuit—is insufficient as 4 “even actual notice will not provide personal jurisdiction” unless there is 5 “‘substantial compliance’ with Fed. R. Civ. P. 4. . . .” Graham, 79 Fed. App’x. at 6 993-94 (citing Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982)). 7 Because Cooper’s method of service did not substantially comply with Rule 4, 8 this Court grants Defendants’ Motions to Dismiss for lack of personal jurisdiction. 9 III. CONCLUSION 10 The Court notes that all defendants provided additional defenses but does not 11 reach them at this juncture. 12 If Cooper wishes to file a new complaint he must also properly serve all 13 defendants in accordance with Nevada Rule of Civil Procedure 4 and Federal Rule 14 of Procedure 4. Cooper may also address the additional arguments posed by 15 defendants—particularly with regard to the existence of some contract between 16 Cooper and LVCC, Washington, or Boardman. The Court additionally notes that 17 a duty only found in a federal statute may not form the basis of a negligence claim 18 under the Federal Tort Claims Act. See Delta Sav. Bank v. United States, 265 F.3d 19 1017, 1024 (9th Cir. 2001) (“The breach of a duty created by federal law is not, 20 by itself, actionable under the FTCA.”) (quoting U.S. Gold & Silver Invs. Inc. v. 21 United States, 885 F.2d 620, 621 (9th Cir. 1989)). 22 23 IT IS HEREBY ORDERED THAT Defendant Chad Boardman’s Motion to 24 Dismiss (ECF No. 19) is GRANTED. All of Cooper’s claims against Boardman are 25 dismissed without prejudice. 26 IT IS FURTHER ORDERED THAT LVCCC and Washington’s Motion to Dismiss 27 (ECF No. 23) is GRANTED. All of Cooper’s claims against LVCCC and Washington 28 are dismissed without prejudice. 1 IT IS FURTHER ORDERED THAT Cooper’s Motion for Summary Judgment 2 || (ECF No. 11) and Defendant United States’ Motion to Stay (ECF No. 31) are 3 || DENIED as moot. 4 5 IT 1S SO ORDERED. 6 7 DATED THIS 13th day of October 2022. 8 9 Aras plod jen 10 ANNER TRAUM 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28