Paul Lietz v. Drug Enforcement Administration

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 24, 2025
• Docket: 23-35603
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 24 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PAUL LIETZ, No. 23-35603

Plaintiff-Appellant, D.C. No. 1:22-cv-00209-BLW

and MEMORANDUM* SAKAHANN OUCH; et al.,

Plaintiffs,

v.

DRUG ENFORCEMENT ADMINISTRATION; et al.,

Defendants-Appellees,

and

CANYON COUNTY; et al.,

Defendants.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, District Judge, Presiding

Submitted January 24, 2025**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision San Francisco, California

Before: FRIEDLAND, BENNETT, and BADE, Circuit Judges.

Plaintiff-Appellant Paul Lietz sued numerous state and federal defendants in

the United States District Court for the District of Idaho, challenging the execution

of a search warrant on his property. The district court determined that Lietz had

failed to properly serve the Federal Defendants1 under Federal Rule of Civil

Procedure 4(i), and the court gave Lietz another sixty days to effect service. Lietz,

however, failed to properly serve the Federal Defendants by the deadline, and the

court dismissed the case without prejudice. Lietz appeals the dismissal, and we have

jurisdiction under 28 U.S.C. § 1291. We affirm.

Lietz’s primary argument is that the district court erred in concluding that

sending a copy of the summons and complaint by Federal Express does not meet the

requirement under Rule 4(i)(1) that these documents be sent by “registered or

certified mail.” We review de novo a district court’s construction of the Federal

Rules of Civil Procedure. See Magnuson v. Video Yesteryear, 85 F.3d 1424, 1427

(9th Cir. 1996).

There was no error. In Magnuson, we held that “mail” for purposes of Rule 5

without oral argument. See Fed. R. App. P. 34(a)(2). 1 The “Federal Defendants” are the Drug Enforcement Administration, and Special Agents Colin Fine, David Clyde, Dustin Bloxham, and Brandon Poggi. The Federal Defendants are the only remaining defendants.

2 means “U.S. mail,” not Federal Express. Id. at 1431. In reaching that holding, we

explained that the term “mail” as used within the Federal Rules of Civil Procedure

should be interpreted consistently: “[O]n a practical level, [it] does [not] make sense

to adopt an approach that interprets the term ‘mail’ differently for the purposes of

different rules within the Federal Rules of Civil Procedure.” Id. Thus, under

Magnuson, Federal Express is not “registered or certified mail” under Rule 4(i)(1).

Without proper service of process, the district court correctly dismissed the

case without prejudice. See SEC v. Ross, 504 F.3d 1130, 1138–39 (9th Cir. 2007)

(“[I]n the absence of proper service of process, the district court has no power to

render any judgment against the defendant’s person or property . . . .”); Wei v.

Hawaii, 763 F.2d 370, 371 (9th Cir. 1985) (reviewing for abuse of discretion a

district court’s dismissal for lack of timely service). Lietz failed to serve the Federal

Defendants despite the district court’s sixty-day extension of time and warning that

Lietz’s claims would be dismissed if he did not file proof of proper service on or

before the deadline. Lietz offers no reason, let alone “good cause,” for his failure.

Fed. R. Civ. P. 4(m) (“[I]f the plaintiff shows good cause for the failure [to serve the

defendant by the deadline], the court must extend the time for service for an

appropriate period.”).

We reject Lietz’s argument that Puett v. Blandford, 912 F.2d 270 (9th Cir.

1990), controls, as our holding in that case was limited to “incarcerated pro se

3 plaintiff[s] proceeding in forma pauperis [who are] entitled to rely on the U.S.

Marshal for service of the[ir] summons and complaint.” Id. at 275. Further, the

district court notified Lietz of the defects in service, but he failed to correct them

despite receiving an extension of time to do so. We also reject Lietz’s argument that

the Federal Defendants waived service by making a “general appearance.” “Federal

Rule of Civil Procedure 12 abolished the distinction between general and special

appearances when the Federal Rules were adopted in 1938.” SEC v. Wencke, 783

F.2d 829, 832 n.3 (9th Cir. 1986). Under Rule 12(h)(1), the Federal Defendants

preserved their defense of insufficient service of process by expressly raising it in

opposition to Lietz’s request for a default judgment. See Fed. R. Civ. P.

12(h)(1)(B)(ii) (providing that a party waives an insufficient service of process

defense if they fail to “include it in a responsive pleading”). Finally, contrary to

Lietz’s position, “actual notice” does not “subject defendants to personal jurisdiction

if service was not made in substantial compliance with Rule 4.” Jackson v.

Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982).

AFFIRMED.