Higgins v. Higgins

• Court: District Court, D. Arizona
• Decided: March 6, 2023
• Docket: 2:22-cv-00283
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Mark Rock Higgins, et al., No. CV-22-00283-PHX-JJT

10 Plaintiffs, ORDER

11 v.

12 Mark Rock Higgins, et al.,

13 Defendants. 14 15 Plaintiff filed his Complaint in this matter on February 22, 2022. (Doc. 1.) On 16 March 18, 2022, the Court entered an Order that the action would be dismissed without 17 further notice after May 24, 2022 unless before then Plaintiff served Defendants with the 18 Summons and Complaint and filed with the Clerk of Court proof thereof pursuant to 19 Federal Rule of Civil Procedure 4(l) or showed good cause for the failure to timely serve. 20 (Doc. 5.) On May 19, 2022, the Court extended Plaintiff’s service deadline to June 14, 21 2022, and again warned Plaintiff that the action would be dismissed without further notice 22 as to all Defendants not lawfully served and for whom Plaintiff had not filed proof thereof 23 or shown good cause for the failure to timely serve. (Doc. 11.) Before and since the entry 24 of these Orders, Plaintiff has filed hundreds of pages of frequently arcane and largely 25 unintelligible documents. While some of these filings have titles such as “Proof of Notice” 26 (Doc. 8), “Certificate of Service” (Doc. 9), and “Affidavit of Notarial Presentments 27 Witness Non-Response of Respondents” (Doc. 16), upon inspection none of them 28 1 indicate—let alone prove—that Plaintiff ever properly served the Summons and Complaint 2 as required by the Federal Rules of Civil Procedure and the Court’s Orders. 3 Rule 4 sets forth the requirements for a valid summons and for proper service of the 4 same. Among other requirements, the summons must “state the time within which the 5 defendant must appear and defend”; “be signed by the clerk”; and “bear the court’s seal.” 6 Fed. R. Civ. P. 4(a)(1). “A summons—or a copy of a summons that is addressed to multiple 7 defendants—must be issued for each defendant to be served.” Fed. R. Civ. P. 4(b). It is the 8 plaintiff’s responsibility to timely serve the summons, along with a copy of the complaint. 9 Fed. R. Civ P. 4(c)(1). These are not mere formalities: “Before a federal court may exercise 10 personal jurisdiction over a defendant, the procedural requirement of service of summons 11 must be satisfied.” Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). 12 Thus, while Rule 4 generally is a “flexible rule that should be liberally construed so 13 long as a party receives sufficient notice of the complaint,” Whidbee v. Pierce County, 857 14 F.3d 1019, 1023 (9th Cir. 2017), “[t]he failure of a plaintiff to obtain valid process from 15 the court to provide it with personal jurisdiction over the defendant in a civil case is fatal 16 to the plaintiff’s case.” Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 569 (3d Cir. 1996); 17 see also Silbaugh v. Chao, 942 F.3d 911, 915 (9th Cir. 2019) (“For the district court to 18 exercise personal jurisdiction over [the defendant], [the plaintiff] must have served her with 19 a valid, properly signed summons and the . . . complaint.”). 20 Here, there is no evidence in the record that Plaintiff ever presented a summons to 21 the Clerk for issuance in this matter or that a summons signed by the Clerk and bearing the 22 Court’s seal has ever been issued. Among Plaintiff’s many filings is a “Certificate of 23 Service by: Jamal Parker to CV-22-283-PHX-JJT to Respondent(s) Affidavit as per 24 Chancellor/Trustee’s Specifications,” in which Jamal Parker declared: 25 On [May 1, 2022], I served the parties in [this] matter within accordance to tuchi:john-joseph cv-22-283-PHX-JJT, ORDER and SUMMONS upon 26 Counsel/Respondent(s) for higgins:mark-rock/HIGGINS FAMILY TRUST 27 Petition/Summons, by mailing true correct copies of the same by USPS Certified Mail, prepared for delivery to [certain Defendants named in the 28 Complaint.] 1 (Doc. 9.) Setting aside for now the issue of the propriety of service by certified mail, 2 Plaintiff has not provided a copy, nor any further description, of the “SUMMONS” 3 purportedly mailed to the listed Defendants. It is immaterial in any event because, as noted, 4 there is no evidence that such a summons was “signed by the clerk” or “b[ore] the court’s 5 seal.” Fed. R. Civ. P. 4(a)(D), (F), (G). Again, these are not mere formalities. “The issuance 6 of a summons signed by the Clerk, with the seal of the Court, and the time designated 7 within which a defendant is required to appear and attend, are essential elements of the 8 court’s personal jurisdiction over the defendant.” Ayres, 99 F.3d at 569; see also, e.g., 9 Ghosh v. City of Berkeley, No. C-14-2922 MMC, 2015 WL 153209, at *2 (N.D. Cal. 10 Jan. 12, 2015) (finding insufficient process where summons lacked signature of district 11 court clerk, which was not a mere “technical error” excusable under Rule 4); State Farm 12 Fire & Cas. Co. v. Amazon.com, Inc., No. CV-17-01994-PHX-JAT, 2018 WL 2240144, at 13 *2 (D. Ariz. May 16, 2018) (finding insufficient service of process where plaintiff served 14 defendant with state-court summons rather than federal court summons, which fell short of 15 “substantial compliance” with Rule 4). Plaintiff failed to obtain a valid summons. 16 Plaintiff has also failed to submit proof that he properly served any Defendant with 17 a valid summons and copy of the Complaint in accordance with the requirements of Rule 18 4. Again, this issue is jurisdictional. “A federal court does not have personal jurisdiction 19 over a defendant unless the defendant has been served in accordance with Fed. R. Civ. P. 20 4.” Travelers Cas. & Sur. Co. of America v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) 21 (quotation marks and citations omitted). As the Court explained in its May 19, 2022 Order, 22 it was Plaintiff’s responsibility to properly and timely serve the Summons and Complaint. 23 As the Court further explained, Rule 4 provides certain requirements for service of process: 24 Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be 25 served in a judicial district of the United States by: 26 27 28 1 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is 2 located or where service is made;[1] or 3 (2) doing any of the following: 4 (A) delivering a copy of the summons and of the complaint to 5 the individual personally; 6 (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion 7 who resides there; or 8 (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. 9 10 Fed. R. Civ. P. 4(e). Plaintiff has failed to comply with any of these methods of service. 11 Plaintiff has submitted voluminous evidence indicating he mailed certain 12 documents to certain Defendants before he filed the Complaint on February 22, 2022— 13 which necessarily cannot prove proper service of the Summons and Complaint in this 14 matter. (See, e.g., Doc. 7 at 72; Doc. 7-1 at 4, 8–9, 31; Doc. 7-3 at 10; Doc. 8 at 4; Doc. 16 15 at 2, 3, 6, 7, 11, 12, 15; Doc. 16-2 at 3–4, 17.) Plaintiff also has submitted evidence 16 indicating he mailed certain documents to certain Defendants after he filed the Complaint, 17 including the “Certificate of Service” stating that Jamal Parker served the “ORDER and 18 SUMMONS” by certified mail. (Doc. 9 at 2; see also Doc. 8 at 2–3; Doc. 16 at 13, 16–17; 19 Doc. 16-2 at 14–16; Doc. 16-3 at 7, 9.) Beyond the fact that any “SUMMONS” purportedly 20 mailed was not valid, service by mail is not sufficient except under certain circumstances. 21 First, under Arizona law, service within Arizona by certified mail is proper only if 22 the normal means of service are “impracticable” and the court issues an “order that service 23 may be accomplished in another manner.” Ariz. R. Civ. P. 4.1(k). The Court has issued no

24 1 Most relevant here, under Arizona law, an individual may be served within Arizona by: 25 (1) delivering a copy of the summons and the pleading being served to that individual personally; 26 (2) leaving a copy of each at that individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or 27 (3) delivering a copy of each to an agent authorized by appointment or by 28 law to receive service of process. Ariz. R. Civ. P. 4.1(d). 1 such order. Further, Arizona law also requires that “the serving party must make a 2 reasonable effort to provide the person being served with actual notice.” Id. The Court 3 remains doubtful that Plaintiff has made such efforts. Indeed, it is doubtful that Defendants 4 have received actual or constructive notice of this lawsuit.2 No Defendant has submitted a 5 notice of appearance, motion, answer, or any other filing. Second, service outside Arizona 6 by mail is valid only if the server files an Affidavit of Service stating, among other things, 7 that “the serving party mailed the summons and a copy of the pleading or other request for 8 relief to the person” and “received a signed return receipt, which is attached to the affidavit 9 and which indicates that the person received the described documents.” Ariz. R. Civ. P. 10 4.2(c)(1), (2). The “Certificate of Service” by Jamal Parker (Doc. 9) does not satisfy these 11 requirements. Third, Plaintiff has not complied with the requirements under Rule 4 for 12 service by mail on officers of the United States. To properly serve Defendants who are 13 officers of the United States, Plaintiff was required to mail or deliver a copy of a valid 14 summons and the Complaint to: (1) the United States Attorney for the District of Arizona; 15 (2) the Attorney General; and (3) the officers sued in their official capacities. See Fed. R. 16 Civ. P. 4(i)(1)–(2); see also D.C.R. Civ. P. R. 4(i). Among other things, the Court has found 17 nothing in the record showing Plaintiff mailed a valid summons and the Complaint to the 18 United States Attorney for the District of Arizona. 19 The Court has twice previously informed Plaintiff of the requirements for properly 20 serving Defendants in this matter. (Docs. 5, 11.) It sua sponte granted Plaintiff an extension 21 of the service deadline. (Doc. 11 at 2.) Yet Plaintiff has not substantially complied with 22 these requirements, preventing this Court from exercising personal jurisdiction over 23 Defendants. Nor does the Court have assurance that Defendants have received sufficient 24 notice of Plaintiff’s Complaint. Notwithstanding Plaintiff’s claims that he is “not a citizen 25 of the united states for the district of columbia, nor a citizen of the united states of america

26 2 To the extent Plaintiff could argue that he can proceed only against himself as a named Defendant, the Court would lack jurisdiction over such a case. Federal courts “are limited 27 by the case-or-controversy requirement of Art. III to adjudication of actual disputes between adverse parties.” Richardson v. Ramirez, 418 U.S. 24, 36 (1974); see also, e.g., 28 Globe & Rutgers Fire Ins. Co. v. Hines, 273 F. 774, 777 (2d Cir. 1921) (“It is elementary that the same person cannot be both plaintiff and defendant in the same action.”). 1 || in congress assembled” (Doc. 1 at 10), Plaintiff must follow the rules applicable in United || States courts if he wishes to avail himself of their jurisdiction. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure that govern other litigants.’’). Plaintiffs failure to do so, despite repeated warnings, warrants 5 || dismissal of this case without further notice or extension of the time for proper service. 6 IT IS THEREFORE ORDERED dismissing Plaintiff's Complaint (Doc. 1) for 7\|| failure to properly and timely serve Defendants in accordance with the requirements of 8 || Federal Rule of Civil Procedure 4 and this Court’s Orders (Docs. 5, 11). 9 IT IS FURTHER ORDERED denying as moot any pending Motion filed by Plaintiff in this matter, including Plaintiff's “Motion to Proceed Ex Parte” (Doc. 14), 11 || “Motion for Discovery By Subpoena” (Doc. 19), and “Challenge of Order and Jurisdiction” (Doc. 22). 13 IT IS FURTHER ORDERED directing the Clerk of the Court to terminate this matter. 15 Dated this 6th day of March, 2023. CN 16 “wok: 17 wef hlee— Unifga StatesDistrict Judge 18 19 20 21 22 23 24 25 26 27 28

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