3 Khari Varner, et al., 4 2:25-cv-00646-APG-MDC Plaintiffs, 5 ORDER GRANTING CLARK COUNTY’S vs. MOTION TO QUASH (ECF NO. 12) 6
7 Clark County Department of Family Services, et al., 8 Defendants. 9
10 11 I. Introduction. 12 Defendant Clark County (“Clark County”) specially appears to file a Motion to Quash. ECF No. 13 12 (“Motion”). Clark County notes that plaintiff sued Teresa Tibbs, Yerie Williams, Essence Lino, Brian 14 White, Adrian Smith, and Brianaa Combs and the Clark County’s Department of Family Services 15 (“DFS”) and Child Protective Services (“DPS”). See ECF No. 12 at 2-3; see ECF No. 1. The individuals 16 sued are also sued as agents of DFS. Clark County claims several defects in how plaintiff attempted to 17 serve individual and state government defendants. See ECF No. 12. Plaintiff did not file a response. The 18 Court agrees with Clark County, and GRANTS the Motion for the reasons set forth below. 19 II. Analysis 20 A. Legal Standard 21 Under Federal Rule of Civil Procedure 4, “the plaintiff is responsible for having the 22 summons and complaint served within the time allowed by Rule 4(m)[.]” A federal court lacks 23 personal jurisdiction over a defendant until the defendant is served under Federal Rule of Civil 24 Procedure 4. Direct Mail Specialists v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th 25 Cir.1988). The burden of establishing proper service of process rests on the plaintiff. Brockmeyer 1 v. May, 383 F.3d 798, 801 (9th Cir.2004). Actual notice does not subject a defendant to personal 2 jurisdiction, “if service was not made in substantial compliance with Rule 4.” Crowley v. 3 Bannister, 734 F.3d 967, 975 (9th Cir. 2013) (emphasis added). 4 Under Rule 4(e), service to individuals can be done by:
5 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court 6 is located or where service is made; or (2) doing any of the following: 7 (A) delivering a copy of the summons and of the complaint 8 to the individual personally; (B) leaving a copy of each at the individual's dwelling or 9 usual place of abode with someone of suitable age and discretion who resides there; or 10 (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. 11 Nevada state rules for serving individuals are similar the federal rule requirements. See Nev. R. 12 Civ. P. 4.2(a).1 13 Under Federal Rule of Civil Procedure 4(j), service to a state or local government entity 14 can be done by: “(A) delivering a copy of the summons and of the complaint to its chief 15 executive officer; or (B) serving a copy of each in the manner prescribed by that state's law for 16 serving a summons or like process on such a defendant.” In Nevada state rules, a state 17 government subdivision “must be served by delivering a copy of the summons and complaint to 18 19 1 20 (a) Serving an Individual. Unless otherwise provided by these rules, service may be made on an individual: 21 (1) by delivering a copy of the summons and complaint to the individual personally; 22 (2) by leaving a copy of the summons and complaint at the 23 individual’s dwelling or usual place of abode with a person of suitable age and discretion who currently resides therein and is not 24 an adverse party to the individual being served; or (3) by delivering a copy of the summons and complaint to an 25 agent authorized by appointment or by law to receive service of process. 1 the presiding officer of the governing body of the political subdivision, or an agent designated by 2 the presiding officer to receive service of process.” See Nev. R. Civ. P. 4.2(d)(3). 3 B. Service to Individual Defendants as Individuals did not Substantially Comply 4 Federal or State Rules 5 Clark County argues that plaintiff’s attempted service to individual defendants did not 6 comply Federal Rule of Civil Procedure 4(e). See ECF No. 12 at 3-5. The Court agrees. In her 7 Proof of Service, plaintiff did not send attempt to give service individually to defendants Yerie 8 Williams, Brian White, or Brianaa Combs. See ECF No. 8. Plaintiff only sent certified mail 9 service to defendants Teresa Tibbs, Essence Lino, and Adrian Smith to the work office they 10 work at, not to them or an agent personally, or with someone of suitable age at their personal 11 residence or abode. See id; see also Bd. of Tr. of Glazing Health and Welfare Fund v. Z-Glass, 12 Inc., No. 2:17-cv-01638-JAD-NJK, 2018 WL 4053320 at *7 (granting a Motion to Quash 13 because plaintiff’s attempted service to defendant’s personal residence or usual place of abode 14 was not clearly to an address that was the defendant’s personal residence).2 15 Clark County specially appearing to file this Motion does not waive their, or any of the 16 defendants’, right to challenge service of process. Federal Rule of Civil Procedure 12(b)(5) 17 allows a defendant to present a defense for the “insufficient service of process.” A defendant 18 waives this defense only if the defendant fails to assert the defense in a responsive pleading or in 19 the defendant's first Rule 12(b) motion. See Fed.R.Civ.P. 12(h); see also Schnabel v. Lui, 302 20 F.3d 1023, 1033 (9th Cir.2002). Therefore, service to these individual defendants did not 21 substantially comply federal or state rules and Clark County has the right to move to quash 22 plaintiff’s attempted service of process. 23
24 2 While Nev. R. Civ. P. 4.4(b) provides for alternative service methods, plaintiff must file a motion and show that providing service under Nev. R. Civ. P. 4.2 is impracticable and that plaintiff conducted due 25 diligence to locate and properly service the defendant(s). No motion or showing of due diligence was demonstrated by plaintiff here. C. Service to County Government Subdivisions and Agents did not 1 Substantially Comply Federal or State Rules 2 Clark County argues that plaintiff’s attempted service to DFS, DPS, and individual 3 defendants in their official capacity as agents of DFS did not comply Federal Rule of Civil 4 Procedure 4(j) and Nevada law. See ECF No. 12 at 5-6. The Court agrees. As Clark County 5 notes, plaintiff sent certified mail to some of the caseworkers at the DFS and to the Federal Court 6 and Services Center building. Plaintiff did not address the mail to any officer of the DFS or DPS, 7 or to any designated agent. ECF No. 12 at 6; see ECF No. 8. Therefore, service to these county 8 government subdivisions and its agents did not substantially comply federal or state rules.3 See 9 Uranga v. Adams, No. 3:10-cv-00014-RCJ-RAM, 2011 WL 147909, at *4 (D. Nev. Jan. 14, 10 2011) (“A state-created governmental organization must be served by service on the chief 11 executive officer (the governor) or by the manner prescribed by state law for serving such a 12 defendant.”) (emphasis added). As stated above, Clark County specially appearing to file this 13 Motion also does not waive their, or any of the defendants’, right to challenge service of process. 14 D.
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3 Khari Varner, et al., 4 2:25-cv-00646-APG-MDC Plaintiffs, 5 ORDER GRANTING CLARK COUNTY’S vs. MOTION TO QUASH (ECF NO. 12) 6
7 Clark County Department of Family Services, et al., 8 Defendants. 9
10 11 I. Introduction. 12 Defendant Clark County (“Clark County”) specially appears to file a Motion to Quash. ECF No. 13 12 (“Motion”). Clark County notes that plaintiff sued Teresa Tibbs, Yerie Williams, Essence Lino, Brian 14 White, Adrian Smith, and Brianaa Combs and the Clark County’s Department of Family Services 15 (“DFS”) and Child Protective Services (“DPS”). See ECF No. 12 at 2-3; see ECF No. 1. The individuals 16 sued are also sued as agents of DFS. Clark County claims several defects in how plaintiff attempted to 17 serve individual and state government defendants. See ECF No. 12. Plaintiff did not file a response. The 18 Court agrees with Clark County, and GRANTS the Motion for the reasons set forth below. 19 II. Analysis 20 A. Legal Standard 21 Under Federal Rule of Civil Procedure 4, “the plaintiff is responsible for having the 22 summons and complaint served within the time allowed by Rule 4(m)[.]” A federal court lacks 23 personal jurisdiction over a defendant until the defendant is served under Federal Rule of Civil 24 Procedure 4. Direct Mail Specialists v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th 25 Cir.1988). The burden of establishing proper service of process rests on the plaintiff. Brockmeyer 1 v. May, 383 F.3d 798, 801 (9th Cir.2004). Actual notice does not subject a defendant to personal 2 jurisdiction, “if service was not made in substantial compliance with Rule 4.” Crowley v. 3 Bannister, 734 F.3d 967, 975 (9th Cir. 2013) (emphasis added). 4 Under Rule 4(e), service to individuals can be done by:
5 (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court 6 is located or where service is made; or (2) doing any of the following: 7 (A) delivering a copy of the summons and of the complaint 8 to the individual personally; (B) leaving a copy of each at the individual's dwelling or 9 usual place of abode with someone of suitable age and discretion who resides there; or 10 (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. 11 Nevada state rules for serving individuals are similar the federal rule requirements. See Nev. R. 12 Civ. P. 4.2(a).1 13 Under Federal Rule of Civil Procedure 4(j), service to a state or local government entity 14 can be done by: “(A) delivering a copy of the summons and of the complaint to its chief 15 executive officer; or (B) serving a copy of each in the manner prescribed by that state's law for 16 serving a summons or like process on such a defendant.” In Nevada state rules, a state 17 government subdivision “must be served by delivering a copy of the summons and complaint to 18 19 1 20 (a) Serving an Individual. Unless otherwise provided by these rules, service may be made on an individual: 21 (1) by delivering a copy of the summons and complaint to the individual personally; 22 (2) by leaving a copy of the summons and complaint at the 23 individual’s dwelling or usual place of abode with a person of suitable age and discretion who currently resides therein and is not 24 an adverse party to the individual being served; or (3) by delivering a copy of the summons and complaint to an 25 agent authorized by appointment or by law to receive service of process. 1 the presiding officer of the governing body of the political subdivision, or an agent designated by 2 the presiding officer to receive service of process.” See Nev. R. Civ. P. 4.2(d)(3). 3 B. Service to Individual Defendants as Individuals did not Substantially Comply 4 Federal or State Rules 5 Clark County argues that plaintiff’s attempted service to individual defendants did not 6 comply Federal Rule of Civil Procedure 4(e). See ECF No. 12 at 3-5. The Court agrees. In her 7 Proof of Service, plaintiff did not send attempt to give service individually to defendants Yerie 8 Williams, Brian White, or Brianaa Combs. See ECF No. 8. Plaintiff only sent certified mail 9 service to defendants Teresa Tibbs, Essence Lino, and Adrian Smith to the work office they 10 work at, not to them or an agent personally, or with someone of suitable age at their personal 11 residence or abode. See id; see also Bd. of Tr. of Glazing Health and Welfare Fund v. Z-Glass, 12 Inc., No. 2:17-cv-01638-JAD-NJK, 2018 WL 4053320 at *7 (granting a Motion to Quash 13 because plaintiff’s attempted service to defendant’s personal residence or usual place of abode 14 was not clearly to an address that was the defendant’s personal residence).2 15 Clark County specially appearing to file this Motion does not waive their, or any of the 16 defendants’, right to challenge service of process. Federal Rule of Civil Procedure 12(b)(5) 17 allows a defendant to present a defense for the “insufficient service of process.” A defendant 18 waives this defense only if the defendant fails to assert the defense in a responsive pleading or in 19 the defendant's first Rule 12(b) motion. See Fed.R.Civ.P. 12(h); see also Schnabel v. Lui, 302 20 F.3d 1023, 1033 (9th Cir.2002). Therefore, service to these individual defendants did not 21 substantially comply federal or state rules and Clark County has the right to move to quash 22 plaintiff’s attempted service of process. 23
24 2 While Nev. R. Civ. P. 4.4(b) provides for alternative service methods, plaintiff must file a motion and show that providing service under Nev. R. Civ. P. 4.2 is impracticable and that plaintiff conducted due 25 diligence to locate and properly service the defendant(s). No motion or showing of due diligence was demonstrated by plaintiff here. C. Service to County Government Subdivisions and Agents did not 1 Substantially Comply Federal or State Rules 2 Clark County argues that plaintiff’s attempted service to DFS, DPS, and individual 3 defendants in their official capacity as agents of DFS did not comply Federal Rule of Civil 4 Procedure 4(j) and Nevada law. See ECF No. 12 at 5-6. The Court agrees. As Clark County 5 notes, plaintiff sent certified mail to some of the caseworkers at the DFS and to the Federal Court 6 and Services Center building. Plaintiff did not address the mail to any officer of the DFS or DPS, 7 or to any designated agent. ECF No. 12 at 6; see ECF No. 8. Therefore, service to these county 8 government subdivisions and its agents did not substantially comply federal or state rules.3 See 9 Uranga v. Adams, No. 3:10-cv-00014-RCJ-RAM, 2011 WL 147909, at *4 (D. Nev. Jan. 14, 10 2011) (“A state-created governmental organization must be served by service on the chief 11 executive officer (the governor) or by the manner prescribed by state law for serving such a 12 defendant.”) (emphasis added). As stated above, Clark County specially appearing to file this 13 Motion also does not waive their, or any of the defendants’, right to challenge service of process. 14 D. Plaintiff Did Not Oppose Defendants’ Motion 15 The plaintiff did not file a response to defendants’ Motion. Per Local Rule 7-2(d), the 16 Court deems plaintiff’s failure to respond to defendants’ Motion as her consent to the Court 17 granting the Motion. Id.4 18 // 19 // 20 // 21 // 22
23 3 Clark County also notes that county government subdivisions may be immune from suit, pursuant to 64 C.J.S. Municipal Corporations § 2195 (1950) and Nevada caselaw (ECF No. 12 at 5), however the 24 Court does not address that argument as service by plaintiff is otherwise defective. 4Local Rule 7-2(d) states in relevant part: “The failure of an opposing party to file points and authorities 25 in response to any motion, except a motion under Fed. R. Civ. P. 56 or a motion for attorney’s fees, constitutes a consent to the granting of the motion.” 1 Conclusion 2 Plaintiffs attempted service upon defendants did not substantially comply with Federal 3 || Rule of Civil Procedure 4 and related Nevada rules. By operation of LR 7-2(d), plaintiff also 4 || consented to defendants’ Motion and quashing service. Therefore, the Court GRANTS the 5 || motion to quash service for all defendants: DFS, DPS, Teresa Tibbs, Yerie Williams, Essence 6 || Lino, Brian White, Adrian Smith, and Brianaa Combs. See Direct Mail Specialists, 840 F.2d at 7 || 688 (“A federal court does not have jurisdiction over a defendant unless the defendant has been 8 || served properly under Fed.R.Civ.P. 4.”). 10 IT IS ORDERED that: 11 1. Clark County’s Motion to Quash (ECF No. 12) is GRANTED. 12 2. Service upon all defendants in this case is QUASHED. 13 3. The Clerk of Court is kindly directed to STRIKE the proof of service the plaintiff filed at 14 ECF No. &. 15 4. Plaintiff must serve defendants within 90 days from the date of this order. 16 17 DATED this 2"¢ day of September 2025. 19
21 Hos Maxiiniliano D. Couvillier III 3 United States Magistrate Judge 23 24 25