Raphael v. Gomez

• Court: District Court, D. Nevada
• Decided: July 31, 2025
• Docket: 2:25-cv-01338
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 WILLIAM RAPHAEL, 6 Case No. 2:25-cv-01338-NJK1 Plaintiff, 7 Order v. 8 [Docket No. 6] MARCOS GOMEZ, et al., 9 Defendants. 10 11 Pending before the Court is Defendants’ motion to dismiss. Docket No. 6. The Court does 12 not require further briefing or a hearing. See Local Rule 78-1. 13 “A federal court does not have jurisdiction over a defendant unless the defendant has been 14 served properly.” Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 15 688 (9th Cir. 1988). Rule 12(b)(4) of the Federal Rules of Civil Procedure allows a party to 16 challenge irregularities in the contents of a summons. Cranford v. United States, 359 F. Supp. 2d 17 981, 984 (E.D. Cal. 2005). Bringing such a motion is generally a fool’s errand. “Rule 4 is a 18 flexible rule that should be liberally construed so long as a party receives sufficient notice of the 19 complaint.” United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 20 (9th Cir. 1984). Absent a showing of prejudice stemming from a defect in the summons, dismissal 21 is generally not warranted. Id. The rules allow for a deficiency in a summons to be cured by 22 amendment. See Fed. R. Civ. P. 4(a)(2); see also Great Plains Crop Mgmt., Inc. v. Tryco Mfg. 23 24

25 1 This case is currently referred to the undersigned magistrate judge as part of the District’s opt-out program. See Docket Nos. 3, 4. At any rate, the relief provided herein is not dispositive 26 in nature or effect, such that the ruling is within a magistrate judge’s authority in a non-consent case. See Maisonville v. F2 Am., Inc., 902 F.2d 746, 747-48 (9th Cir. 1990); see also, e.g., 27 Alexander v. Nev., Case No. 3:10-cv-00429-RCJ-WGC, 2014 WL 7365930 (D. Nev. Dec. 24, 2014) (magistrate judge issuing order, as opposed to report and recommendation, granting motion 28 to quash service and for further service efforts). 1 Co., Inc., 554 F. Supp. 1025, 1028 (D. Mont. 1983).2 “Thus, mindful that plaintiffs should not be 2 denied their day in court because of a technical oversight, federal courts frequently grant 3 amendments to cure defective process.” Lane v. Fontaine, Case No. 3:09-cv-00260-LRH-RAM, 4 2010 WL 186160, at *1 (D. Nev. Jan. 15, 2010) (construing Nevada Rules of Civil Procedure by 5 looking to corresponding federal law); see also Maricopa Cnty. v. Am. Petrofina, Inc., 322 F. Supp. 6 467, 470 (N.D. Cal. 1971) (although summons was invalid for lack of clerk’s signature and seal 7 of the court, explaining that in practical terms the defendant at best “would gain nothing but time” 8 since valid service could be accomplished thereafter). In addition, “[t]he court may order the 9 amended summons served on defendant[s’] attorney to avoid the necessity of re-serving the 10 defendant[s] personally.” Crane v. Battelle, 127 F.R.D. 174, 177 (S.D. Cal. 1989).3 11 In this case, Plaintiff is proceeding without an attorney and attempted service prior to 12 removal using summonses unsigned by the state district court clerk and lacking the court’s seal. 13 See Docket No. 1-3. Defendants are correct that the summonses are defective. Nev. R. Civ. P. 14 4(a)(1)(G), (H). The Court is not persuaded, however, that dismissal is a proper remedy. As an 15 initial matter, ample time remains for Plaintiff to effectuate service. See Fed. R. Civ. P. 4(m) 16 (providing 90 days for service); see also, e.g., Schauf v. Am. Airlines, Case No. 1:15-cv-01172- 17 SKO, 2015 WL 5647343, at *5 (E.D. Cal. Sept. 24, 2015) (“The [90]-day period set forth in Rule 18 4(m) starts to run upon removal to the federal district court, not on the date the action originated 19 in state court”). Plaintiff’s pro se status further militates against dismissal on this ground. See, 20 e.g., Fuentes v. Nat. Tr. Co. Deutsche Bank, Case No. 22-cv-04953-BLF, 2023 WL 2278701, at 21 *4 (N.D. Cal. Feb. 27, 2023). Moreover, the Court has a strong preference for deciding cases on 22 their merits and Defendants fail to establish prejudice. Rather than dismiss the amended 23 complaint, the summonses will be amended to cure the deficiencies identified. 24 2 The fact that a summons was issued by the state court prior to removal does not impede 25 the ability to amend the summons in federal court after removal. See 28 U.S.C. § 1448 (in removed cases “in which process served proves to be defective, . . . new process [may be] issued in the same 26 manner as in cases originally filed in [federal] district court”). 3 Defendants’ argument is predicated largely on an unpublished Ninth Circuit decision 27 from 1992. See Docket No. 6 at 6-7. Defendants’ citation to this unpublished decision violates the governing rules. See 9th Cir. R. 36-3(c). Moving forward, defense counsel must ensure 28 compliance with all applicable rules. ] Accordingly, Defendants’ motion is GRANTED in limited part as stated above. The Clerk’s Office is INSTRUCTED to issue a summons for each Defendant and to place those 3] summonses on the docket such that they are served on defense counsel through the Court’s 4] electronic system. Defendants must respond to the amended complaint within 21 days of the 5|| issuance of the amended summonses. See Fed. R. Civ. P. 12(a)(1)(A)(i).4 6 IT IS SO ORDERED. 7 Dated: July 31, 2025 Nancy J. Keppe, \. 9 United States Magistrate Judge 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 Defendant Las Vegas Metropolitan Police Department also moves to dismiss the amended complaint on Rule 12(b)(6) grounds. See Docket No. 6 at 3-5. In light of the finding above, the Court declines to address that argument at this time. See, e.g., Wilcox v. Portfolio Recovery Assocs., LLC, Case No. 2:20-cv-01545-JAD-NJK, 2020 WL 6729278, at *2 (D. Nev. Nov. 16, 2020) (citing Hobby v. Mulhern, Case No. CV050081PHXSRB, 2005 WL 2739010, at *1 (D. Ariz. Oct. 21, 2005)).