I Chi Wu v. Jamie Pesce, et al.

• Court: District Court, E.D. California
• Decided: December 12, 2025
• Docket: 2:25-cv-02175
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 I CHI WU, Case No. 2:25-cv-2175-TLN-JDP (PS) 12 Plaintiff, 13 v. ORDER; FINDINGS AND RECOMMENDATIONS 14 JAMIE PESCE, et al.,

15 Defendants. 16 17 Plaintiff brings this action against Judge Jamie Pesce, the El Dorado County District 18 Attorney Vern Pierson, the El Dorado County Sheriff’s Office, Marjorie Heny, Kassie Cardullo, 19 and Abigail Rosemary. ECF No. 1. Pending before the court is plaintiff’s request to add 20 defendants, ECF No. 8, motion for assistance, ECF No. 21, and motion for a Chinese interpreter, 21 ECF No. 24; and defendants’ Pierson, El Dorado County Sheriff’s Office, and Cardullo’s motion 22 to dismiss under 12(b)(5) and (6), ECF No. 17. Plaintiff’s request to add defendants, construed as 23 a motion to amend, and defendants’ motion to dismiss, will be granted. The remaining motions 24 will be denied. 25 Motion for Assistance and Motion for Chinese Interpreter 26 Plaintiff’s first motion is difficult to understand. Plaintiff appears to seek guidance on her 27 criminal and civil cases pending in El Dorado County. This court is not authorized to assist 28 plaintiff with her pending lawsuits. Accordingly, the motion is denied, 1 Plaintiff’s second motion requests appointment of a Chinese interpreter. The court is 2 unaware of any statute authorizing the expenditure of public funds for a court-appointed 3 interpreter in a civil action. Even if plaintiff were proceeding in forma pauperis, which she is not, 4 “the expenditure of public funds [on behalf of an indigent litigant] is proper only when authorized 5 by Congress,” Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989), and the court is unaware of 6 an authorization from Congress to use public funds to appoint an interpreter in a civil case. 7 Accordingly, the motion is denied. 8 Motion to Add Defendants 9 Plaintiff has filed a motion to add new defendants, which the court construes as a motion 10 to amend the complaint. ECF No. 8. Good cause appearing, plaintiff will be provided thirty days 11 to file an amended complaint. Plaintiff is responsible for effectuating proper service on each 12 defendant.1 13 Motion to Dismiss 14 Defendants Pierson, El Dorado County Sheriff’s Office, and Cardullo move to dismiss 15 under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6) for improper service and failure to 16 state a claim. Defendants contend that plaintiff’s service of process was insufficient in various 17 respects, including that plaintiff herself attempted to serve defendants. ECF No. 17-1 at 11-13. 18 A party may contest the sufficiency of service of process under Rule 12(b)(5). Fed. R. 19 Civ. P. 12(b)(5). Once service has been challenged, the plaintiff bears the burden of showing that 20 service was proper. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). This burden is 21 satisfied when the process server files a return of service, which acts as “prima facie evidence of 22 valid service.” S.E.C. v. Internet Sols. for Bus. Inc., 509 F.3d 1161, 1166 (9th Cir. 2007) (quoting 23 O’Brien v. R.J. O’Brien & Assocs., 998 F.2d 1394, 1398 (7th Cir. 1993)). If there is no defect 24 apparent from the face of the return, the defendant must present evidence showing that he or she 25 was not properly served. Emine Tech. Co., Ltd. v. Aten Intern. Co., No. C 08-3122 PJH, 2008 26

27 1 Upon plaintiff’s filing of her amended complaint, the court will issue plaintiff summons for any new defendants. Plaintiff is responsible for serving all defendants in compliance with 28 either federal or state service laws. Fed. R. Civ. P. 4(e). 1 WL 5000526, at *2 (N.D. Cal. Nov. 21, 2008). A defendant may overcome this presumption only 2 by “strong and convincing evidence.” Internet Sols. for Bus. Inc., 509 F.3d at 1166 (quoting 3 O’Brien, 998 F.2d at 1398). 4 It is well established that a party to a lawsuit may not serve process. See Fed. R. Civ. P. 4 5 (c)(2) (“Any person who is at least 18 years old and not a party may serve a summons and 6 complaint.”) (emphasis added); see also Cal. Civ. Proc. Code § 414.10 (“A summons may be 7 served by any person who is at least 18 years of age and not a party to the action.”) (emphasis 8 added). Here, plaintiff’s certificates of service indicate on she, despite being a party to the action, 9 attempted to complete service of process. ECF Nos. 10, 11, & 14. Plaintiff has filed several 10 documents in response to defendants’ motion, see ECF Nos. 21, 23, & 24, but none dispute that 11 she did not attempt service herself or demonstrate that service was proper. As such, service of 12 process was plainly insufficient. 13 “Upon deciding that process has not been properly served on the defendant, a district court 14 has broad discretion to either dismiss the complaint or quash service of process.” Surefire, LLC v. 15 Casual Home Worldwide, Inc., 2012 WL 2417313, at *2 (S.D. Cal. Jun. 26, 2012). “However, if 16 it appears that effective service can be made and there has been no prejudice to the defendant, a 17 court will quash service rather than dismiss the action.” Id. It appears that plaintiff can still 18 effect service on defendants. Accordingly, I recommend that defendants’ motion to dismiss based 19 on plaintiff’s improper service of process be granted and service of process be quashed in lieu of 20 dismissal. Plaintiff shall properly serve defendants within thirty days of service of the first 21 amended complaint. 22 Accordingly, it is hereby ORDERED that: 23 1. Plaintiff’s motion for assistance, ECF No. 21, and motion for the appointment of an 24 interpreter, ECF No. 24, are DENIED. 25 2. Plaintiff’s motion to add defendants, ECF No. 8, is construed as a motion to amend and 26 is GRANTED. Plaintiff shall file a first amended complaint within thirty days. 27 28 1 Further, it is hereby RECOMMENDED that defendants’ motion to dismiss, ECF No. 17, 2 | be GRANTED and the summons for defendants Pierson, El Dorado, and Cardullo, be 3 | QUASHED. 4 These findings and recommendations are submitted to the United States District Judge 5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days of 6 | service of these findings and recommendations, any party may file written objections with the 7 | court and serve a copy on all parties. Any such document should be captioned “Objections to 8 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 9 | within fourteen days of service of the objections. The parties are advised that failure to file 10 | objections within the specified time may waive the right to appeal the District Court’s order. See 11 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 12 1991). 13 4 IT IS SO ORDERED.

Dated: _ December 12, 2025 Q————. 16 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE

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