1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ABAD AMILCA SANDOVAL No. 1:20-cv-01422-DAD-JLT GONZALEZ, 12 Plaintiff, 13 ORDER GRANTING IN PART AND v. DENYING IN PART DEFENDANTS’ 14 MOTION TO DISMISS CALIFORNIA HIGHWAY PATROL, et 15 al., (Doc. No. 5) 16 Defendants. 17 18 This matter is before the court on a motion to dismiss, to strike, and to quash service 19 brought by defendants California Highway Patrol (“CHP”), CHP Officer Chad Moran, and CHP 20 Commissioner Warren Stanley. Defendants seek to dismiss plaintiff’s complaint pursuant to 21 Rules 12(b)(4) and 12(b)(5) of the Federal Rules of Civil Procedure due to allegedly insufficient 22 process and insufficient service of process. (Doc. No. 5.) In the alternative, defendants request 23 the court: (1) quash service on defendants; (2) pursuant to Rule 12(f) strike the allegations from 24 plaintiff’s complaint seeking punitive damages against defendant CHP and those defendants 25 named in their official capacity; (3) dismiss defendants CHP and Stanley from this action 26 pursuant to Rules 12(b)(6) and 12(f) because the claims brought against those defendants are 27 barred by the Eleventh Amendment to the U.S. Constitution; and (4) strike plaintiff’s complaint 28 for failing to comply with Rule 11(a). (Id.) Pursuant to General Order No. 617 addressing the 1 public health emergency posed by the COVID-19 pandemic, the motion was taken under 2 submission on the papers. (Doc. No. 7.) For the reasons explained below, the court will grant the 3 motion to dismiss defendants CHP and Stanley from this action pursuant to Rule 12(b)(6) and 4 grant the motion to strike plaintiff’s requests for punitive damages as to defendant CHP and 5 defendants Stanley and Moran in their official capacities. The court will deny the motion to 6 dismiss based upon the alleged insufficient process and insufficient service pursuant to Rules 7 12(b)(4) and 12(b)(5), will decline to quash service, and will deny defendants’ motion to strike 8 the complaint for failure to comply with Rule 11(a). 9 BACKGROUND 10 This case arises from an alleged interaction between plaintiff Abad Amilca Sandoval 11 Gonzalez and defendant Chad Moran, a CHP officer, on the afternoon of September 6, 2019 at 12 the California Department of Transportation (“Caltrans”) District Six Office located in Fresno, 13 California. (Doc. No. 1 at ¶¶ 5, 8, 14.) In his complaint, plaintiff alleges the following. Plaintiff 14 is a citizen journalist who creates content for a YouTube channel called “Kern County 15 Transparency.” (Id. at ¶¶ 10–11.) On September 6, 2019, plaintiff visited the Caltrans Fresno 16 office “to perform and document a public records request.” (Id. at ¶ 14.) Caltrans staff contacted 17 the CHP apparently in response to plaintiff’s conduct, after which, defendant Moran and another 18 officer who is not a party to this action responded to the call. (Id. at ¶¶ 15–16.) 19 Soon after the officers’ arrival, defendant Moran ordered plaintiff to exit the Caltrans 20 building. (Id. at ¶ 17.) Plaintiff initially refused to leave the building, but he complied once 21 defendant Moran stated that he was giving plaintiff “a lawful order to leave.” (Id. at ¶¶ 18–21.) 22 Defendant Moran briefly questioned plaintiff about the nature of his business at the Caltrans 23 office and then asked for his identification. (Id. at ¶ 25.) Plaintiff refused to provide his 24 identification to defendant Moran, to which defendant Moran replied that plaintiff would be 25 arrested if plaintiff did not do so. (Id. at ¶¶ 25–31.) Plaintiff Gonzalez again refused to give his 26 identification to defendant Moran, who then “grab[bed] Mr. Gonzalez by the arm, place[d] him in 27 handcuffs, and state[d] ‘you are under arrest.’” (Id. at ¶ 32.) Plaintiff was detained in the rear 28 caged seat of a marked CHP vehicle for over an hour, but was released without being cited or 1 charged. (Id. at ¶ 33.) Plaintiff alleges that prior to and after he was arrested, “he had made no 2 threats, had taken no aggressive actions, [and] had not verbally threatened harm or exhibited any 3 actions to cause anyone to believe that they were in any danger.” (Id. at ¶ 35.) 4 On October 4, 2020, plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 5 and California Civil Code § 52.1 asserting the following five causes of action: (1) a claim against 6 defendant Moran for unreasonable seizure of person in violation of the Fourth Amendment to the 7 U.S. Constitution; (2) a claim against defendant Moran for deprivation of plaintiff’s constitutional 8 right to free speech in violation of the First Amendment to the U.S. Constitution; (3) a claim 9 against defendant Moran for false arrest; (4) a claim against defendants CHP and Stanley 10 pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658 (1978); and 11 (5) a claim against defendant Moran for violation of California Civil Code § 52.1, the Bane Act. 12 (Id. at 7, 8, 9, 10, 17.) 13 On November 5, 2020, plaintiff filed an executed return of service, indicating that copies 14 of the summons and complaint were left with a CHP sergeant at the CHP Fresno Field Office on 15 October 21, 2020. (Doc. No. 4.) On November 18, 2020, defendants filed the pending motion to 16 dismiss. (Doc. No. 5.) Plaintiff filed a “request for leave to amend complaint in lieu of plaintiff’s 17 opposition” on January 7, 2021, and on January 13, 2021, defendants filed their reply. (Doc. Nos. 18 9, 10.) 19 LEGAL STANDARDS 20 A. Motion to Dismiss Due to Insufficient Service of Process Under Rule 12(b)(4), (5) 21 A federal court has jurisdiction over a defendant only if the defendant has been properly 22 served under Rule 4. Direct Mail Specialists, Inc v. Eclat Computerized Techs., Inc., 840 F.2d 23 685, 688 (9th Cir. 1988) (citing Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982)); see 24 also Long v. McAfee, Case No. 1:19-cv-00898, 2019 WL 5536228, at *2 (E.D. Cal. Oct. 25, 25 2019). “Mere notice that a lawsuit is pending is not sufficient.” Razavi v. Regis Corp., No. 5:15- 26 cv-02574-EJD, 2016 WL 97438, at *2 (N.D. Cal. Jan. 8, 2016). However, “Rule 4 is a flexible 27 rule that should be liberally construed so long as a party receives sufficient notice of the 28 complaint.” Direct Mail Specialists, 840 F.2d at 688 (quoting United Food & Com. Workers 1 Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984)); see also Long, 2019 WL 2 5536228, at *2. 3 Pursuant to Rule 4(c), a defendant must be served with a copy of the summons and 4 complaint. Fed. R. Civ. P. 4(c). Rule 4(e) identifies four permissible methods for serving an 5 individual: (1) following state law for serving a summons in an action brought in courts of 6 general jurisdiction in the state where the district court is located or where service is made; 7 (2) delivering a copy of the summons and of the complaint to the individual personally; 8 (3) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of 9 suitable age and discretion who resides there; or (4) delivering a copy of each to an agent 10 authorized by appointment or by law to receive service of process. Fed. R. Civ. P. (4)(e). Rule 11 4(m) states that if a defendant “is not served within 90 days after the complaint is filed, the 12 court—on motion or on its own after notice to the plaintiff—must dismiss the action without 13 prejudice against that defendant or order that service be made within a specified time.” Fed. R. 14 Civ. P. 4(m). 15 Under Rule 12(b)(5), a defendant may challenge the method of service attempted by a 16 plaintiff. U.S.A. Nutrasource, Inc. v. CNA Ins. Co., 140 F. Supp. 2d 1049, 1052 (N.D. Cal. 2001). 17 Under Rule 12(b)(4), a defendant may challenge “irregularities in the contents of a summons.” 18 Cranford v. United States, 359 F. Supp. 2d 981, 984 (E.D. Cal. 2005) (citing Chilicky v. 19 Shweiker, 796 F.2d 1131, 1136 (9th Cir. 1986)). A district court has discretion to either dismiss 20 the action against the improperly served defendant or quash service of the complaint on that 21 defendant. S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006). “Once 22 service is challenged, plaintiffs bear the burden of establishing that service was valid under Rule 23 4.” Almont Ambulatory Surgery Ctr., LLC v. UnitedHealth Grp., Inc., 99 F. Supp. 3d 1110, 1227 24 (C.D. Cal. 2015) (quoting Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004)). 25 B. Rule 12(f) Motion to Strike 26 Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or 27 any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The 28 function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise 1 from litigating spurious issues by dispensing with those issues prior to trial.” Whittlestone, Inc. v. 2 Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 3 1524, 1527 (9th Cir. 1993)). A decision whether to strike certain material is committed to the 4 sound discretion of the district court. Id.; Fed. Sav. & Loan Ins. Corp. v Gemini Mgmt., 921 F.2d 5 241, 244 (9th Cir. 1990). However, motions to strike are generally disfavored and “should not be 6 granted unless it is clear that the matter to be stricken could have no possible bearing on the 7 subject matter of the litigation.” Neveu v. City of Fresno, 392 F. Supp. 2d 1159, 1170 (E.D. Cal. 8 2005) (citation and quotation marks omitted); see also Neilson v. Union Bank of Cal., N.A., 290 9 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003) (“Motions to strike are generally regarded with disfavor 10 because of the limited importance of pleading in federal practice, and because they are often used 11 as a delaying tactic.”). In resolving such motions, the court must view the pleading in a light 12 most favorable to the non-moving party and resolve any doubt as to the relevance of the 13 challenged allegations in favor of the non-moving party. See In re 2TheMart.com, Inc. Sec. 14 Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000). 15 C. Rule 12(b)(6) Motion to Dismiss Due to Failure to State a Claim 16 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 17 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 18 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 19 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 20 F.2d 696, 699 (9th Cir. 1990). A claim for relief must contain “a short and plain statement of the 21 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Though Rule 8(a) 22 does not require detailed factual allegations, a plaintiff is required to allege “enough facts to state 23 a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 24 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). “A claim has facial plausibility when the 25 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 26 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 27 In determining whether a complaint states a claim on which relief may be granted, the 28 court accepts as true the allegations in the complaint and construes the allegations in the light 1 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 2 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). It is inappropriate to assume that the plaintiff 3 “can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways 4 that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of 5 Carpenters, 459 U.S. 519, 526 (1983). 6 ANALYSIS 7 A. Defendants’ Rule 12(b)(6) Motion to Dismiss Plaintiff’s Complaint Against CHP and 8 CHP Commissioner Stanley 9 Plaintiff has brought a Monell claim against defendants CHP and Commissioner Stanley.1 10 (Doc. No. 1 at 10–17.) Defendants move to dismiss this claim pursuant to Rule 12(b)(6) for 11 failure to state a claim upon which relief may be granted and Rule 12(b)(1) for lack of subject- 12 matter jurisdiction. (Doc. No. 6 at 13.) Defendant Stanley first argues that plaintiff does not 13 allege “any facts” indicating that he was involved in the alleged incident involving plaintiff. (Id.) 14 Defendant Stanley also asserts that plaintiff’s allegations against him seek liability based merely 15 upon his position as a supervisor, but that respondeat superior liability is not recognized under 42 16 U.S.C. § 1983. (Id. at 14) (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). Second, 17 both defendants CHP and Stanley contend that the Eleventh Amendment to the U.S. Constitution 18 bars plaintiff’s suit against them because sovereign immunity protects states and state officials 19 from suit when acting in their official capacity. (Id. at 13–14) (citing U.S. Const. amend. XI; 20 Brooks v. Sulphur Springs Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th Cir. 1991)). 21 In his opposition to the pending motion, plaintiff concedes that his complaint “does not 22 plead any identifiable facts or specific actions” against defendant Stanley and plaintiff therefore 23 requests leave to amend his complaint so as to voluntarily dismiss defendant Stanley from this 24 1 In discussing plaintiff’s punitive damages claim and the issue of sovereign immunity, 25 defendants’ counsel refers to defendant CHP both as the “California Highway Patrol” and the “State of California” interchangeably. While technically correct because the Ninth Circuit has 26 recognized that the CHP is “an arm of the state for the purposes of the Eleventh Amendment [to 27 the U.S. Constitution],” the court will refer to defendant CHP as such for the sake of clarity. See Flores v. Cal. Highway Patrol, No. 2:11-cv-2446-KJN, 2011 WL 4433626, at *2, (E.D. Cal. 28 Sept. 21, 2011). 1 action. (Doc. No. 9 at 5.) Plaintiff does not address whether he also seeks to voluntarily dismiss 2 his Monell claim against defendant CHP and, accordingly, the court addresses the pending motion 3 to dismiss that claim below. 4 The Eleventh Amendment to the United States Constitution prevents federal courts from 5 extending their judicial power to a suit against a state and “confirms the sovereign status of the 6 States by shielding them from suits by individuals absent their consent.” U.S. Const. amend. XI; 7 Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) (citing Seminole Tribe of Fla. v. Florida, 8 517 U.S. 44, 54 (1996)). A state’s sovereign immunity also extends to arms or instrumentalities 9 of the state because, in those actions, the state “is the real party in interest.” Lewis, 137 S. Ct. at 10 1290; see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989) (citing Mt. Healthy Bd. 11 of Ed. v. Doyle, 429 U.S. 274, 280 (1977)) (“States or governmental entities [] are considered 12 ‘arms of the State’ for Eleventh Amendment purposes” while municipalities are not and Monell is 13 therefore limited to “local government units”). Thus, it is clear that the CHP is an arm of the state 14 of California and is therefore protected by sovereign immunity. See, e.g., O’Leary v. Cal. 15 Highway Patrol, 923 F.2d 862 (9th Cir. 1991) (“Because the CHP is a state agency ... and the 16 State of California has not consented to suit ... both the State and the CHP enjoy sovereign 17 immunity and cannot be sued under section 1983.”); see also Mulvaney v. Cal. Highway Patrol, 18 No. 5:17-cv-01044, 2018 WL 1114549, at *5 & n. 6 (C.D. Cal. Feb. 26, 2018); O’Keefe v. Cal. 19 Highway Patrol, No. 2:14-cv-0792-MCE-CMK, 2015 WL 75236, at *4 (E.D. Cal. Jan. 6, 2015) 20 findings and recommendations adopted 2015 WL 640911 (E.D. Cal. Feb. 13, 2015); May v. Cal. 21 Highway Patrol, No. C 09–3460 BZ, 2010 WL 234868, at *1 (N.D. Cal. Jan. 14, 2010); 22 Townsend v. California, No. 1:10-cv-0470-LJO-SKO, 2010 WL 1644740, at *6 (E.D. Cal. Apr. 23 21, 2010); Vierria v. Cal. Highway Patrol, 644 F. Supp. 2d 1219, 1232 (E.D. Cal. 2009); Guzman 24 v. Van Demark, 651 F. Supp. 1180, 1183 (C.D. Cal.1987). 25 A state and its arms and instrumentalities may not be sued in federal court unless the state 26 waives its immunity and unequivocally consents to suit, or Congress abrogates the Eleventh 27 Amendment immunity. Penhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–99 (1984); 28 Welch v. Tex. Dep’t of Highways and Public Trans., 483 U.S. 468, 473–474 (1987). With regard 1 to congressional abrogation, the Supreme Court has held that 42 U.S.C. § 1983, under which 2 plaintiff’s Monell claims are brought, allows for suits against municipalities and local 3 governments but does not overturn the constitutionally guaranteed immunity of the several States. 4 Quern v. Jordan, 440 U.S. 332, 339 n.7, 345 (1979), overruled on other grounds by Hafer v. 5 Melo, 502 U.S. 21, 25–27 (1991); see also Will, 491 U.S. at 64; Dittman v. California, 191 F.3d 6 1020, 1026 (9th Cir. 1999). With regard to consent to suit or waiver of Eleventh Amendment 7 immunity, the state’s waiver must be “stated ‘by the most express language or by such 8 overwhelming implications from the text as [will] leave no room for any other reasonable 9 construction.’” Welch, 483 U.S.at 473 (citing Clark v. Barnard, 108 U.S. 436, 447 (1883) 10 (citations omitted)). Because defendant CHP has not waived its sovereign immunity2 and 11 because 42 U.S.C. § 1983 does not abrogate the several states’ immunity, plaintiff’s fourth cause 12 of action against defendant CHP is barred by California’s sovereign immunity. 13 Accordingly, the court will grant defendants’ motion to dismiss plaintiff’s fourth cause of 14 action brought against defendants CHP and Stanley with prejudice. 15 B. Defendants’ Rule 12(f) Motion to Strike Plaintiff’s Allegations for Punitive Damages 16 Plaintiff seeks punitive damages against defendants CHP and Stanley in their official 17 capacities and against defendant Moran in both his official and individual capacities. (Doc. No. 1 18 at ¶¶ 48, 60, 69, 99, 104, 110.) Defendants move to strike plaintiff’s request for punitive damages 19 against defendant CHP and against defendants Stanley and Moran in their official capacities. 20 (Doc. No. 6 at 12.) Defendants do not challenge plaintiff’s request for punitive damages against 21 defendant Moran in his individual capacity. Defendants assert that plaintiff’s requests for 22 punitive damages from a government entity are barred by California’s sovereign immunity under 23 the Eleventh Amendment. (Doc. No. 6 at 12.) Defendants argue that punitive damages against 24 state officials acting in their official capacity are similarly barred. (Id.) (citing Will, 491 U.S. at 25 71). Consequently, defendants ask the court to strike “any language purporting to seek or claim 26
27 2 The State of California “has waived its sovereign immunity for torts actions” under California Government Code § 945, but this waiver “does not . . . constitute a waiver of eleventh amendment 28 immunity.” BV Engineering v. Univ. of Cal., L.A., 858 F.2d 1394, 1396 (1988). 1 punitive damages against any defendant for acting in his official capacity.” (Id.) 2 In his response to defendants’ motion, plaintiff asserts that he is “prepared, to strike all3 3 allegations and requests for punitive damages” against defendants CHP and Moran. (Doc. No. 9 4 at 5.) Plaintiff does not state whether he is agreeing to strike his request for punitive damages 5 against defendant Stanley. However, the claims against defendants CHP and Stanley have been 6 dismissed above. Accordingly, defendants’ requests to strike punitive damages against those 7 defendants have been rendered moot. With regard to plaintiff’s request for punitive damages 8 against defendant Moran, the court will grant the motion to strike punitive damages sought 9 against defendant Moran in his official capacity only. Section 1983 does allow for the award of 10 punitive damages in cases where “the defendant’s conduct is shown to be motivated by evil 11 motive or intent, or when it involves reckless or callous indifference to the federally protected 12 rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). However, the distinction between a 13 defendant sued in his official capacity versus his individual capacity determines whether a 14 plaintiff may seek punitive damages. See, e.g., City of Newport v. Fact Concerts, Inc., 453 U.S. 15 247, 263 (1981) (barring punitive damages against governmental entities); cf. Smith, 461 U.S. at 16 56 (allowing for punitive damages against government officials in their individual capacities). 17 The Supreme Court has held that “[d]amages awarded for punitive purposes . . . are not 18 sensibly assessed against the governmental entity itself.” City of Newport, 453 U.S. at 266–277. 19 Punitive damages are meant to “punish the tortfeasor” and “deter him and others from similar 20 extreme conduct,” but when a plaintiff is awarded punitive damages against a government, the 21 “retribution” of punitive damages falls upon “blameless or unknown taxpayers,” not the actual 22
23 3 Defendant Moran is being sued for actions he allegedly took in his individual capacity as well as in his official capacity. (Doc. No. 1 at ¶ 8.) It is unclear whether plaintiff’s willingness to 24 strike “all” such damages indicates that plaintiff wishes to strike all punitive damages allegations against defendant Moran, including those brought against him in his individual capacity, or if 25 “all” refers only to all those being challenged by defendants in the pending motion to dismiss, which only seeks dismissal of claims brought against the defendants in their official capacity. As 26 indicated above, punitive damages may be sought against officers in their individual capacities. 27 See Smith, 461 U.S. at 35. The court will not strike plaintiff’s punitive damages claim against defendant Moran to the extent that claim is brought against him in his individual capacity absent 28 plaintiff’s clear intent to abandon that claim. 1 wrongdoer. Id.; see also Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 2 785 n.15 (2000) (Because of concern over “imposing punitive damages on taxpayers under any 3 circumstances,” there is a “presumption against imposition of punitive damages on governmental 4 entities.”). Therefore, the punitive damages plaintiff seeks in this action against defendant Moran 5 in his official capacity as a CHP officer are barred. See Newport, 453 U.S. 247 at 263. 6 Accordingly, the court will grant defendants’ motion to strike plaintiff’s claim for punitive 7 damages against defendant Moran in his official capacity but not in his individual capacity. 8 C. Defendants’ Motion to Dismiss Pursuant to Rules 12(b)(4) and 12(b)(5) 4 9 This court has jurisdiction over a defendant only if the defendant has been properly served 10 under Rule 4. Direct Mail Specialists, Inc, 840 F.2d at 688 (9th Cir. 1988); see also Long, 2019 11 WL 5536228, at *4. A defendant may move to dismiss a claim for insufficient process or 12 insufficient service of process pursuant to Rules 12(b)(4) and 12(b)(5) respectively, as defendants 13 have done here. 14 Defendants advance several arguments in support of their motion to dismiss based upon 15 their contentions of insufficient process and insufficient service of process. First, defendants 16 attest that plaintiff left copies of the summons and complaint for all defendants with a sergeant at 17 one of CHP’s Fresno offices, but that “[s]ubstituted service on an employer, or place of 18 employment is not authorized or contemplated under Fed. R. Civ. P. 4(e).” (Doc. No. 6 at 7, 9.) 19 4 Defendants also move to strike plaintiff’s complaint for failure to sign the complaint in 20 accordance with Rule 11(a) of the Federal Rules of Civil Procedure and Rule 131(b) of the Eastern District of California’s Local Rules. (Doc. No. 6 at 12.) Defendants contend that neither 21 the complaint filed with the court on October 4, 2020, nor the complaint “purportedly served on Defendants” on October 23, 2020, were signed by an attorney. (Id. at 13.) Because plaintiff’s 22 complaint fails to meet the requirements of both federal and local rules, defendants request that 23 plaintiff’s complaint be stricken. (Id.) Plaintiff concedes counsel’s error in not signing the complaint and requests leave to amend the complaint so as to effectuate service of a signed 24 complaint. (Doc. No. 9 at 4.) Rule 11(a) of the Federal Rules of Civil Procedure provides that “[e]very pleading . . . must be signed by at least one attorney of record in the attorney’s name” 25 and that the court “must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s . . . attention.” Fed. R. Civ. P. 11(a); see also L.R. 131(b) (requiring 26 signature on “[a]ll pleadings”). The court cannot consider unsigned documents. Nonetheless, the 27 court will grant plaintiff an extension of time in which to serve the remaining defendants with the operative complaint and plaintiff’s counsel will be directed to correct the pleading so as to 28 conform to Rule 11 before properly re-serving the defendants. 1 Additionally, defendants contend that plaintiff did not comply with California law for service of 2 process because plaintiff did not serve the Office of the California Attorney General despite 3 naming the California Highway Patrol, a state agency, as a defendant, along with the other 4 defendants that have been sued in their official capacities.5 (Id. at 7.) Defendants also assert that 5 plaintiff did not complete the required mail service or attempt to serve defendant Commissioner 6 Stanley at his regular place of business. (Id.) Finally, defendants argue that plaintiff did not 7 serve them with the filed version of his complaint; instead, plaintiff allegedly served a complaint 8 that differed from the version filed with the court in terms of its font, spacing, and font sizes. (Id. 9 at 11.) Defendants conclude that plaintiff’s complaint should be dismissed due to his failure to 10 properly serve all of the defendants in a manner described by Rule 4 of the Federal Rules of Civil 11 Procedure. 12 In his opposition to defendants’ motion, plaintiff “concedes that there were deficiencies in 13 the service of process of the Summons and Complaint,” though plaintiff only explicitly 14 acknowledges the failure to serve a “signed, court conformed copy of the civil complaint.” (Doc. 15 No. 9 at 4.) Plaintiff additionally acknowledges that the court could quash service, but contends 16 that the improper service could be “easily remedied” by granting plaintiff leave to amend his 17 complaint. (Id.) Plaintiff’s counsel assures the court that “all defects of in [sic] service of 18 process” will be cured by properly serving a First Amended Complaint if leave to amend is 19 granted. (Id.) 20 In their reply to plaintiff’s opposition, defendants note that plaintiff failed to “take any 21 action to cure the defects in service” despite having “nearly two months” between the filing of 22 defendants’ motion to dismiss and the end of the time provided for service of the complaint. 23 (Doc. No. 10 at 2.) Thus, defendants argue that plaintiff’s complaint should be dismissed because 24 plaintiff failed to effect service in either a proper or timely manner. 25
5 California law requires that a plaintiff who brings a case against state officials in their official 26 capacity must serve the summons and complaint on the California Attorney General on behalf of 27 the State of California. See Cal. Gov’t Code § 955.4(a). Here, plaintiffs have brought this lawsuit against defendant Moran in his official and individual capacities and against defendant 28 Stanley in his official capacity. (Doc. No. 1 at 1.) 1 Plaintiff attempted to serve defendants CHP, Stanley, and Moran by leaving copies of the 2 summons and complaint at the CHP Fresno field office.6 Defendants argue broadly that this 3 service was improper because Rule 4(e) supposedly does not allow service at a defendant’s place 4 of employment. (Id. at 9.) Defendants cite the decision in Daly-Murphy v. Winston, 837 F.2d 5 348, 355 (9th Cir. 1987) for the proposition that “Rule 4 has generally been construed to mean 6 that service at a defendant’s place of employment is insufficient.” (Id. at 9.) 7 The court does not find defendants’ argument in this regard to be persuasive. In the next 8 sentence of the decision in Daly-Murphy, the Ninth Circuit clarified that “[m]ore specifically, 9 where money damages are sought through a Bivens claim, personal service and not service at the 10 place of employment, is necessary to obtain jurisdiction over a defendant in his capacity as an 11 individual.” Daly-Murphy, 837 F.2d at 355 (citations omitted). The decision in Daly-Murphy has 12 been cited for the rule that “[s]ervice at a person’s place of employment is generally insufficient if 13 the claim is against a defendant in his individual capacity alone.” Jercich v. Cnty. of Merced, No. 14 1:06-cv-00232-OWW-DLB, 2006 WL 3747184, at *5 (E.D. Cal. Dec. 19, 2006) (citing Daly- 15 Murphy, 837 F.2d at 355)). Here, the claims are brought against defendant Moran in both his 16 official and individual capacities. (Doc. No. 1. at ¶ 8.) 17 Moreover, Rule 4(e)(1) authorizes service by “following state law for serving a summons 18 in an action brought in courts of general jurisdiction in the state where the district court is located 19 or where service is made[.]” Under California law, service at a party’s usual place of business is 20 authorized under certain circumstances, e.g., where the party to be served is a business entity, a 21 public entity, a minor, or a political candidate, or where “a copy of the summons and complaint 22 cannot with reasonable diligence be personally delivered to the person to be served.” See Cal. 23 Civ. Proc. Code § 415.20; see also Cal. Civ. Proc. Code § 415.30 (mail with acknowledgement of 24 receipt). Here, because defendant Moran is being sued in his official capacity as well, the court 25 concludes that service could fall under the exception for a public entity. Thus, the court 26
27 6 The court will not address the alleged failures to serve defendants Stanley and CHP because those defendants are being dismissed from this action pursuant to defendants’ 12(b)(6) motion as 28 explained in this order above. 1 concludes that plaintiff can effectuate service on defendant Moran by following California state 2 law for service, which allows for service at defendant’s place of employment. Fed. R. Civ. P. 3 4(e)(1); Cal. Civ. Proc. Code § 415.20. 4 However, in order to effectuate service on defendant Moran pursuant to California Civil 5 Procedure Code § 415.20, plaintiff would also have to mail a copy of the documents by first-class 6 mail. Plaintiff does not indicate that he did so and thus did not complete the steps required to 7 effectuate proper service under California law. (Doc. No. 6 at 10.) Additionally, here plaintiff 8 must serve the California Attorney General because plaintiff has sued defendant Moran, a 9 California state official, in his official capacity, “which is tantamount to suing the state itself.” 10 Kishore v. Newsom, No. 20-cv-5859-DMG (EX), 2020 WL 6559157, at *1 (C.D. Cal. June 30, 11 2020) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)). “California requires 12 that, in such cases, ‘[s]ervice of summons . . . shall be made on the Attorney General.” Id. (citing 13 Cal. Gov’t Code § 955.4(a)). Plaintiff’s attempted service on defendant Moran was therefore 14 ineffective because plaintiff did not make any attempt to serve the California Attorney General or 15 to mail a copy of the summons by first-class mail. 16 Despite plaintiff’s arguments to the contrary, granting him leave to amend his complaint 17 does not, in fact, remedy the ineffective service with respect to defendant Moran. Rule 4(m) of 18 the Federal Rules of Civil Procedure imposes a 90-day time-limit for service of a complaint; this 19 time limit begins once the first complaint is filed. Fed. R. Civ. P. 4(m); Rudolph v. UT Starcom, 20 Inc., No. 7-cv-04578-SI, 2009 WL 248370, at *2 (N.D. Cal. Feb. 2, 2009) (citing Bolden v. City 21 of Topeka, 441 F.3d 1129, 1148 (10th Cir. 2006)). The 90-day service period does not restart for 22 defendants on the original complaint when plaintiff files an amended complaint. See Tamanaha 23 v. Wells Fargo Bank, NA, No. 10-cv-00273 DAE-KSC, 2011 WL 3861392, at *2 (D. Haw. Aug. 24 12, 2011) (citing Bolden, 441 F.3d at 1148 (“[T]he 120-day period provided by [FRCP] 4(m) is 25 not restarted by the filing of an amended complaint except as to those defendants newly added in 26 the amended complaint.”)). Because defendant Moran is included in the original complaint and 27 because the 90-day time limit for service expired on January 2, 2021, granting plaintiff leave to 28 amend to effectuate proper service would not cure the insufficient and untimely service. See City 1 of Merced v. Fields, 997 F. Supp. 1326, 1137–39 (E.D. Cal. 1998). 2 While granting leave to amend would not cure plaintiff’s ineffective service, the court has 3 the discretion to extend the time limit for carrying out service. The court must extend the time 4 limit for service if the plaintiff “shows good cause for the failure” to serve. Fed. R. Civ. P. 4(m); 5 In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001); Cranford v. United States, 359 F. Supp. 2d 981, 6 985 (E.D. Cal. 2005). When determining whether the good cause requirement has been satisfied, 7 the court must consider whether: (1) the party to be served personally received actual notice of 8 the lawsuit; (2) the defendant would suffer no prejudice; and (3) plaintiff would be severely 9 prejudiced if his or her complaint were dismissed. See Rodriguez v. Cnty. of San Joaquin, No. 10 2:16-cv-00770-TLN-JDP, 2021 WL 1214569, at *3 (E.D. Cal. Mar. 31, 2021). Additionally, the 11 Ninth Circuit has concluded that even where good cause is not established, district courts still 12 have the discretion to dismiss without prejudice or to extend the time period for service. Id. “In 13 making this decision, courts may consider factors such as ‘a statute of limitations bar, prejudice to 14 the defendant, actual notice of a lawsuit, and eventual service.’” Id. (citing Efaw v. Williams, 15 473 F.3d 1038, 1041 (9th Cir. 2007)). 16 Here, the court concludes that there is good cause to extend the time for service. Plaintiff 17 would be prejudiced by a dismissal because the statute of limitations with respect to his false 18 arrest claim has run. California law prescribes a one-year statute of limitations on actions for 19 false imprisonment, and “[f]alse arrest is not a different tort [from false imprisonment]; it is 20 merely ‘one way of committing a false imprisonment.’” Martinez v. City of Los Angeles, 141 21 F.3d 1373, 1379 (9th Cir. 1998) (quoting Collins v. City & Cnty. of San Francisco, 50 Cal. App. 22 3d 671, 673 (1975)); Cal. Civ. Proc. Code § 340. Because more than one year has passed since 23 the alleged incident occurred, plaintiff would potentially be time-barred from refiling his false 24 arrest claim. Additionally, defendants do not dispute that they received actual notice of plaintiff’s 25 lawsuit and they make no argument as to how the granting of an extension of time to effectuate 26 service would prejudice them, nor does the court perceive any such prejudice. Accordingly, this 27 court will deny defendants’ motion to dismiss due to insufficient process and insufficient service 28 of process because there exists good cause for the granting of an extension of time in which to 1 complete service. In the interest of resolving this dispute regarding service of process beyond 2 doubt, plaintiff is directed to serve the current operative complaint, as well as any first amended 3 complaint plaintiff elects to file on defendant Moran and the California Attorney General 4 according to Rule 4(e) of the Federal Rules of Civil Procedure within thirty (30) days of this 5 order. 6 D. Leave to Amend 7 Federal Rule of Civil Procedure 15 instructs courts to freely give leave to amend “when 8 justice so requires” and that rule is “to be applied with extreme liberality.” Eminence Cap., LLC 9 v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). Nevertheless, leave to amend need not be 10 granted where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; 11 (3) produces an undue delay in litigation; or (4) is futile. See Amerisource Bergen Corp. v. 12 Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006). “[I]t is the consideration of prejudice to the 13 opposing party that carries the greatest weight”—prejudice being the “touchstone of the inquiry 14 under Rule 15(a)”—but the opposing party bears the burden of demonstrating prejudice. 15 Eminence Cap., 316 F.3d at 1052 (internal quotation marks and citations omitted). “Absent 16 prejudice, or a strong showing of any of the remaining [ ] factors, there exists a presumption 17 under Rule 15(a) in favor of granting leave to amend.” Id. (emphasis omitted.) 18 There is nothing before the court to suggest bad faith on part of plaintiff or any undue 19 prejudice to defendants posed by the granting of leave to amend here. Although defendants 20 oppose affording plaintiff leave to amend (Doc. No. 10 at 6–9), their arguments relate to 21 plaintiff’s failure to properly execute process and service, which the court has already addressed 22 by extending the time limit for service. Under these circumstances, the court will grant plaintiff 23 leave to amend his complaint pursuant to Rule 15, subject to the constraints noted in this order. 24 CONCLUSION 25 For the reasons set forth above: 26 1. Defendants’ motion to dismiss, to strike, and to quash service (Doc. No. 5) is 27 granted in part and denied in part as follows: 28 a. Defendants’ motion to dismiss plaintiff’s fourth cause of action against 1 defendants CHP and Stanley pursuant to Rule 12(b)(6) is granted; 2 b. Defendants CHP and Stanley are dismissed from this action; 3 C. Defendants’ motion to strike the allegations of plaintiff's complaint 4 seeking punitive damages as to defendant CHP and defendants Stanley and 5 Moran in their official capacities is granted; 6 d. Defendants’ motion to dismiss plaintiff's complaint due to inadequate 7 service of process pursuant to Rules 12(b)(4) and 12(b)(5) is denied; 8 e. The time for service of the complaint is extended and plaintiff is directed to 9 serve a properly-signed operative complaint, or any first amended 10 complaint he elects to file, on defendants within thirty (30) days of this 11 order;’ 12 f. Defendants’ motion to quash service 1s denied; 13 g. Defendants’ motion to strike the complaint pursuant to Rule 11(a) and 14 Local Rule 131(b) is denied as having been rendered moot; 15 2. If plaintiff wishes to amend his complaint in an attempt to cure any of the 16 deficiencies authorized by this order, plaintiff is directed to file with the court an 17 amended complaint no later than thirty (30) days after service of this order; ® 18 3. In the event no amended complaint is filed, defendants shall file their responsive 19 pleading within fourteen (14) days of the date of service. 20 | IT IS SO ORDERED. _ - Dated: _ August 2, 2021 Hen | aor 22 UNITED STATES DISTRICT JUDGE 23 24 | 7 Defendants, of course, are free to waive service. 8 if plaintiff elects to file an amended complaint, he is reminded that Local Rule 220 requires that 26 | an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. 27 | Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in any amended complaint, as in 28 | an original complaint, each claim must be sufficiently alleged. 16