Dipito LLC v. Manheim Riverside

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

DIPITO LLC, a Montana Limited Case No.: 3:21-cv-01205-H-JLB Liability Company d/b/a San Diego Motorwerks; CHIDIEBERE AMADI, an ORDER GRANTING DEFENDANT individual, CENTER AUTOMOTIVE, INC.’S MOTION TO DISMISS FOR Plaintiffs, INSUFFICIENT SERVICE OF v. PROCESS JERRY SIDERMAN, an individual; [Doc No. 68]

LLC; CENTER AUTOMOTIVE, LLC, d/b/a Center BMW; and DOES 1 through

200, inclusive, Defendants. On September 9, 2022, Defendant Center Automotive, Inc. (“Center”) filed a motion to dismiss for insufficient service of process. (Doc. No. 68.) On October 6, 2022, the Court issued an order regarding the motion. (Doc. No. 71.) In the Order, the Court stated that it was inclined to grant the motion1 and noted that Plaintiffs Dipito LLC (“Dipito”)

1 The Court stated it was inclined to grant the motion based on Mr. Farguson’s and Chidiebere Amadi (“Amadi”) had failed to file an opposition to the motion to dismiss within the time limits prescribed under Civil Local Rule 7.1(e)(2). (Id.) The Court granted Plaintiffs an additional two weeks to file an opposition, or, if they did not wish to oppose the motion, granted them thirty days to correct service of process on Center. (Id.) Plaintiffs neither filed an opposition nor corrected service of process within the time periods proscribed by the order. On November 14, 2022, the Court held a hearing on the motion. Michael Alfred appeared for Plaintiffs Dipito and Amadi, Katherine Yang appeared for Defendant Center, and Rebecca Caley appeared for Defendant BMW. At the hearing, Plaintiffs’ counsel acknowledged that they had not filed an opposition and had not yet corrected service of process on Center. Based on the foregoing, including the declaration provided by Mr. Farguson, the Court grants Center’s motion to dismiss for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5). See Gonzalez v. DDR Partners, Inc., No. C-08-03814- JW, 2009 WL 10695747, at *2 (N.D. Cal. Jan. 14, 2009) (granting a motion to quash service for insufficient service of process based on two declarations submitted by the defendant and plaintiffs’ non-opposition). In its discretion, the Court quashes service of process of Center (Doc. No. 13-1). See S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006) (holding that a district court “has discretion to dismiss an action or to quash service” where service of process is insufficient) (citation omitted); see also Schagene v. Grumman, No. 11-CV-1642-AJB, 2012 WL 216531, at *2 (S.D. Cal. Jan. 24,

provided a declaration stating that it sold its dealership at 5201 Van Nuys Blvd., Sherman Oaks, CA 91401 on May 27, 2021 and it no longer owned or operated the dealership following the sale. (Doc. No. 68-2.) The declaration also provided that Mr. Farguson, the registered agent for service of process for Center Automotive, Inc., was not present at the dealership on August 8, 2021 when a “John Doe” accepted service. (Id.) Additionally, Civil Local Rule 7.1.f.3.c. states “[i]f an opposing party fails to file [an opposition] in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the 2012) ‘However, if it appears that effective service can be made and there has been no prejudice to the defendant, a court will quash service rather than dismiss the action.’’) (citation omitted). Plaintiff Dipito” must perfect service of process on Center no later than thirty days (30) from the date this Order is filed. DATED: November 16, 2022 MAALAYV\ Le FELL ff MARILYNU. HUFF, Seniot/i}trict Judge UNITED STATES DISTRICT COURT 1] || Plaintiffs’ counsel stated at the hearing that Plaintiff Chidiebere Amadi no longer wished to proceed with his claims against Defendants. In a separate order, the Court dismissed Plaintiff Chidiebere Amadi’s claims.