Opinion
REPORT AND RECOMMENDATION FOLLOWING EVIDENTIARY HEARING RE: SANCTIONS AND SERVICE OF PROCESS
DAVID H. BARTICK, Magistrate Judge.
On April 18, 2012, the Honorable M. James Lorenz referred this matter to Magistrate Judge David H. Bartick to conduct an evidentiary hearing to determine (1) whether Defendants JD Enterprise & Financial Services ("JD Enterprise") and Joseph Dassa's request for sanctions should be imposed on Plaintiff Raymond B. Guthrie or his counsel, and (2) whether Plaintiff properly served the summons and complaint on February 20, 2012, and to produce a Report and Recommendation on the Court's findings. (ECF No. 12.) Based upon a thorough review of the pleadings and evidence presented to the Court, and for the reasons set forth below, the undersigned Magistrate Judge respectfully RECOMMENDS that (1) Defendants' request for sanctions be DENIED and (2) the District Judge find that service of process on Defendants JD Enterprise and Mr. Dassa was properly effectuated on February 20, 2012.
I. PROCEDURAL BACKGROUND
On April 28, 2011, Plaintiff filed his complaint against Defendants JD Enterprise, Mr. Dassa, and Joe Willis (collectively "Defendants") alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (ECF No. 1.) After over nine months of inactivity, the Court issued a notice of hearing for dismissal for want of prosecution under Civil Local Rule 41.1 and Federal Rule of Civil Procedure 4(m). (ECF No. 3.) Shortly thereafter, on February 23, 2012, the summons were finally returned and executed as to JD Enterprise and Mr. Dassa. (ECF Nos. 4, 5.) As a result, on February 24, 2012, the Court vacated the hearing for dismissal for want of prosecution. (ECF No. 6.) To date, there is no proof of service on record for Mr. Willis, nor has Plaintiff introduced any evidence or argument that Mr. Willis has been served.
On March 8, 2012, Defendants JD Enterprise and Mr. Dassa filed a motion to quash service and dismiss the complaint under Rule 12(b)(5) based on allegedly defective and untimely service. (Defs.' Mot. to Dismiss, ECF No. 7.) Defendants also request that the Court impose monetary sanctions on Plaintiff and his counsel for Plaintiff's purported bad faith conduct based on Plaintiff's alleged filing of false proofs of service. (Defs.' Mot. to Dismiss at 7:25-28.)
On April 18, 2012, this matter was referred to the Magistrate Judge to conduct an evidentiary hearing to determine (1) whether Defendants' request for sanctions should be imposed on Plaintiff or his counsel, and (2) whether Plaintiff effectively served the summons on February 20, 2012, and to produce a Report and Recommendation on the Court's findings. (ECF No. 12.) An evidentiary hearing was conducted on May 15, 2012. (ECF No. 16.)
The District Judge held Defendants' motion to dismiss in abeyance until resolution of the issues referred to the Magistrate Judge.
II. ANALYSIS
The Court finds that a finding as to whether service of summons was completed is a necessary component of the Court's analysis of Defendants' request for sanctions. Accordingly, the Court's first inquiry addresses whether Plaintiff properly served the summons and complaint on JD Enterprise and Mr. Dassa on February 20, 2012. The Court's second inquiry addresses whether sanctions against Plaintiff and his counsel are appropriate.
A. Service of Process
1. Legal Standard
Service of process is governed by Rule 4 of the Federal Rules of Civil Procedure. "The provisions of Rule 4 delineating the manner of service are construed liberally to uphold service." Collagen Nutraceuticals, Inc. v. Neocell Corp., No. 09-cv-2188-DMS (WVG), 2010 U.S. Dist. LEXIS 98228, at *2 (S.D. Cal. Sept. 17, 2010) (citing Crane v. Battelle, 127 F.R.D. 174, 177 (S.D. Cal. 1989)). "Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint." Direct Mail Specialists, Inc. v. Eclat Computerized Techs., 840 F.2d 685, 688 (9th Cir. 1988) (quoting United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984)). However, "[e]ven if the defendant receives actual notice, the manner of service of process must substantially comply with Rule 4 requirements." Bisq'ettes Ceramic Tile, Inc. v. Skinner, No. C-00-00481 EDL, 2000 U.S. Dist. LEXIS 22674, at *20 (N.D. Cal. Sep. 25, 2000).
"When service of process is properly challenged, the party on whose behalf service was made, the plaintiff, has the burden to establish its validity." Solorio v. Astrue, No. 07-cv-0508-H (POR), 2008 U.S. Dist. LEXIS 98604, at *4-5 (S.D. Cal. Dec. 5, 2008) (citing Aetna Business Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981)). The Ninth Circuit holds "that a signed return of service constitutes prima facie evidence of valid service which can be overcome only by strong and convincing evidence. " SEC v. Internet Solutions for Business Inc., 509 F.3d 1161, 1163 (9th Cir. 2007) (emphasis added); see also RCR Plumbing and Mech., Inc. v. Ace Am. Ins. Co., No. EDCV 10-00995 VA(DTBx), 2011 U.S. Dist. LEXIS 62689, at *15 (C.D. Cal. June 3, 2011) ("Unless a defect in service is shown on the face of the return, a motion to dismiss under Rule 12 requires defendants to produce affidavits, discovery materials, or other admissible evidence establishing the lack of proper service.").
2. Analysis
In the instant case, Plaintiffs filed proofs of service of summons on Defendants JD Enterprise and Mr. Dassa. (ECF Nos. 4, 5.) Plaintiff's proofs of service state that David Anthony Pinon, a registered process server employed by Southwest Legal Services, personally served Mr. Dassa in his individual capacity and as an authorized representative of JD Enterprise at 8:15 a.m. on February 20, 2012 at 16202 Marlington Drive, Whittier, California 90604. ( Id. ) The proofs of service describe the individual served as a Caucasian male, approximately 30 to 35 years of age, 5' 8" tall, weighing 195 pounds, and with brown hair. ( Id. ) Pursuant to Ninth Circuit law, the Court finds that these proofs of service constitute prima facie evidence of valid service on JD Enterprise and Mr. Dassa. Accordingly, Plaintiff has satisfied his initial burden of establishing the validity of service which can only be overcome if Defendants present strong and convincing evidence of invalidity. For the reasons set forth below, the Court finds that Defendants cannot make this showing, and that service was indeed valid.
Initially, Defendants rely on Mr. Dassa's sworn declaration that he was never served. (Decl. of Joe Dassa at ¶ 3, ECF No. 7-3.) However, mere allegations that process was not served does not amount to the "strong and convincing evidence" required to rebut the validity of a filed proof of service. See Collagen, 2010 U.S. Dist. LEXIS at *3-4; J&J Sports Productions, Inc. v. Barksdale, No. CIV S-11-2994 JAM CKD PS, 2012 U.S. Dist. LEXIS 52583, *14 (E.D. Cal. Apr. 13, 2012) ("The only evidence contradicting plaintiff's proof of service is defendant[s] own declaration, which is insufficient to overcome the prima facie evidence of valid service."); craigslist, Inc. v. Hubert, 278 F.R.D. 510, 513 (N.D. Cal. Nov. 22, 2011) ("[W]here a plaintiff has filed a signed return of service, courts regularly find that a self-serving declaration that a person was not served is insufficient to overcome this prima facie evidence of valid service.").
In addition to Mr. Dassa's testimony, Defendants maintain they "have conclusive evidence that the proof(s) of service were clearly manufactured, falsified, and perjured." (Defs.' Mot. to Dismiss at 4:16-17.) Specifically, Defendants contend that the evidence demonstrates that Mr. Dassa was not personally served on February 20, 2012 because (1) the physical description on the proofs of service does not match Mr. Dassa's physical description and (2) the videotape and still images of Mr. Dassa's surveillance footage show that the summons and complaint were left at the door to Mr. Dassa's residence and not personally delivered to any person. (Defs.' Mot. to Dismiss at 4:1-6.)
a. Physical Description
As stated above, the proofs of service describe the individual served by Mr. Pinon as a Caucasian male, approximately 30 to 35 years of age, 5' 8" tall, weighing 195 pounds, and with brown hair. (ECF Nos. 4, 5.) However, as Defendants note in their motion to dismiss and as was evident to the Court during the evidentiary hearing, Mr. Dassa's true physical description is significantly different. Indeed, Mr. Dassa appears to be approximately 6' 3" tall and weigh significantly more than the proofs of service depict. (Tr. of Evidentiary Hr'g ["Transcript"] at 27:19-22, May 15, 2012, ECF No. 18; Decl. of Joe Dassa at ¶ 5.) However, evidence that a proof of service contains inaccurate physical description is not, in and of itself, strong and convincing evidence to establish the invalidity of the proof of service. See Collagen, 2010 U.S. Dist. LEXIS at *5-6 (providing a recent photo showing that party looked physically different from what the proof of service indicated is insufficient to demonstrate strong and convincing evidence to rebut the process server's declaration). Moreover, despite the inconsistencies, the Court finds that Mr. Pinon's ability to accurately depict the physical description of the individual served was due in large part to Mr. Pinon's limited ability to obtain an accurate description on the morning in question. Specifically, Mr. Pinon testified that after responding affirmatively to the name "Joe Dassa, " Mr. Dassa opened the door for only five to ten seconds before slamming it closed in Mr. Pinon's face, and that Mr. Pinon spent a portion of that time looking down at his legal documents. (Transcript at 7:22-8:2, 11:10-12-2.) Moreover, Mr. Pinon testified that he only saw the side of Mr. Dassa's face before the door was slammed shut. (Transcript at 12:10-21.) Given the brief period of time in which Mr. Pinon observed Mr. Dassa on the morning of February 20, 2012, the Court finds that the inconsistencies in physical description do not amount to strong and convincing evidence sufficient to rebut Plaintiff's prima facie showing of proper service.
Mr. Dassa stated in his declaration and during the evidentiary hearing that he weighs 340 pounds. However, Mr. Dassa's drivers license (Decl. of Joe Dassa Ex. D, ECF No. 7-5) indicates that he weighs 285 pounds. Mr. Dassa has made no effort to explain this discrepancy. In fact, Defendants appear to concede that Mr. Dassa weighs 285 pounds. ( See Defs.' Reply at 2:26-3:3, ECF No. 10.) In any event, it is clear that Mr. Dassa weighs significantly more than the 195 pounds stated on the proofs of service.
b. Surveillance Footage
Defendants also presented to the Court surveillance footage from Mr. Dassa's home security system, taken the morning of February 20, 2012. It is this surveillance evidence that, according to Defendants, conclusively establishes that Mr. Dassa was never served. However, as discussed below, Mr. Dassa and Mr. Pinon each tell a different version of what occurred at Mr. Dassa's residence on the morning of February 20, 2012. Despite Defendants' contention that the video surveillance evidence constitutes "conclusive evidence" that Mr. Pinon submitted false proofs of service, the video surveillance does nothing more than confirm the latter portion of Mr. Pinon's testimony.
Mr. Pinon testified that after staking out Mr. Dassa's residence from 5:00 a.m. to 8:00 a.m. on the morning of February 20, 2012, and having seen no activity at the residence, Mr. Pinon approached the door and knocked. (Transcript at 7:17-21.) According to Mr. Pinon:
Mr. Pinon also testified that he had attempted to serve Mr. Dassa on February 17, 2012 and February 18, 2012, without success. (Transcript at 4:16-7:18.) However, the proofs of service indicate that Mr. Pinon did not receive the summons until February 18, 2012. (ECF Nos. 4, 5.) Although the Court finds that this inconsistency weighs against Mr. Pinon's credibility, in reaching its ruling the Court need not discuss any attempts to serve Mr. Dassa prior to the actual date of service (i.e., February 20, 2012). Moreover, Mr. Pinon's inconsistent testimony does not amount to strong and convincing evidence that the proofs of service are invalid.
A couple second later, somebody came to the door, asked who it was. I said I had a delivery for Joe Dassa. He then opened the door, and I said, Joe Dassa? He said, yes. Once I lifted my worksheet up to show what I had, I told him I had legal documents, and he slammed the door in my face.
(Transcript at 7:22-8:2.) Following this encounter, Mr. Pinon left the legal documents at the front door after stating to Mr. Dassa through the closed door that he was leaving the legal documents on the doorstep. (Transcript at 8:3-8.)
According to Mr. Dassa, he was asleep in his home at the time Mr. Pinon left the summons on his doorstep. (Decl. of Joe Dassa at ¶3.) Mr. Dassa testified that he never saw Mr. Pinon on February 20, 2012 and he did not become aware of the documents on his doorstep until later that morning when he opened the door and saw the documents on the ground. (Transcript at 27:1-6.)
Plaintiff argues that "[i]t is also interesting how Defendant Dassa knows that current counsel filed the instant case when he claims to have no copy of the complaint which would contain such information." (Pl.'s Opp'n at 5:16-19, ECF No. 9.) However, Mr. Dassa does not dispute that the summons and complaint were left on his doorstep. Rather, he maintains that he retrieved the documents later that day. Thus, the fact that Mr. Dassa is aware of the existence of the lawsuit and the identity of Plaintiff's counsel does not suggest that Mr. Dassa is engaged in a "pattern and practice of lying to avoid service." (Pl.'s Opp'n at 5:19-20.)
Clearly, either Mr. Pinon or Mr. Dassa has provided the Court with an inaccurate account of what truly occurred. Based on the divergent accounts, the Court looks to the surveillance evidence in an attempt to understand what actually occurred. During the evidentiary hearing Defendants presented eleven photographs of still images taken from Mr. Dassa's home surveillance video. The photographs demonstrate the following key events:
• At 8:07:11 a.m., Mr. Pinon was walking on the driveway as he approached the house.
• At 8:07:23 a.m., Mr. Pinon was standing at the front door and appears to be ringing the doorbell. The door is closed.
• At 8:08:08 a.m., Mr. Pinon was standing at the front door looking at his clipboard. The door is closed.
• At 8:08:56 a.m., Mr. Pinon drops documents on the doorstep. The door is closed.
• At 8:08:57 a.m., Mr. Pinon begins to walk back to his car.
The time-stamps found on the surveillance still images are telling. They demonstrate that Mr. Pinon stood at Mr. Dassa's front door for at least 93 seconds. Missing, however, are any photographs depicting what occurred between 8:07:23 a.m. and 8:08:08 a.m., and between 8:08:08 a.m. and 8:08:56 a.m.
The Court expected that Defendant's presentation of the actual surveillance video would clarify what exactly happened during the critical minutes that Mr. Pinon appeared outside Mr. Dassa's home. However, Defendants introduced only a small portion of the video surveillance. Specifically, Defendants' video only depicts the events occurring from 8:08:53 a.m. to 8:09:07 a.m. In other words, the video only shows Mr. Pinon dropping the documents at the front door and walking back towards his car. This video only serves to corroborate Mr. Pinon's testimony. Missing, however, is the video surveillance footage from the time Mr. Pinon arrived at the door (no later than 8:07:23 a.m.) and the time he placed the documents on the doorstep approximately 90 seconds later. The fact that Defendants omitted these 90 seconds is compelling. Had the Court been afforded an opportunity to review the entire sequence of events, the dispute as to whose account is truthful would have been easily resolved. That Defendants failed to introduce the evidence that they claim constitutes "conclusive evidence" that Mr. Pinon's proofs of service are false leads the Court to conclude that, despite any inconsistencies in Mr. Pinon's testimony, his testimony is more credible than Mr. Dassa's testimony. See Errion v. Connell, 236 F.2d 447, 457 (9th Cir. 1956) ("The weight to be given to conflicting testimony [about service of process] is within the discretion of the trial judge who, in this instance, had the parties before him."). This conclusion is supported by Mr. Pinon's statement that he was "110%" confident in his testimony even when faced with the prospect of video surveillance (which he had never seen) potentially portraying the entire incident. (Transcript at 8:13-22.)
Mr. Dassa attempts to explain the lack of complete surveillance footage by claiming that he never recorded the entire sequence because (1) the file size of the full video would have been too large to email to his attorney, and (2) he never thought to maintain the entire recording. (Transcript at 43:22-46:9.) The Court does not view these reasons as credible. First, absent any unbiased or expert testimony substantiating Mr. Dassa's claim that the entire video was "too big" to record onto his phone, the Court views this claim as suspect. Second, Mr. Dassa's claim that he did not think it was necessary to record the entire incident because he is "not an attorney" ignores his own testimony that he called his attorney "immediately" upon finding the legal documents on his doorstep and did not record the footage until a day or two later. (Transcript at 27:6-7, 45:14-18, 46:4-9.) Moreover, Mr. Dassa apparently did believe that it was important to obtain still images at the beginning and middle of Mr. Pinon's visit, and no credible justification was provided for why he would not also preserve the entire video.
In conclusion, because Plaintiff has provided prima facie evidence that process was properly served, and because Defendants have not produced strong and convincing evidence sufficient to overcome Plaintiff's showing, the Court finds that Plaintiff has adequately demonstrated that Defendants J&D Enterprise and Mr. Dassa were personally served on February 20, 2012. Accordingly, the Court RECOMMENDS that the District Judge consider, in ruling on Defendants' motion to dismiss, that Plaintiff personally served Defendants J&D Enterprise and Mr. Dassa on February 20, 2012.
Defendants also contend that service was defective because "merely leaving court documents at a doorstep is not sufficient for personal service as a matter of law." (Defs.' Reply at 4:13-15.) However, under the circumstances present here, leaving the summons and complaint on the doorstep can indeed constitute valid proper service. See Travelers Cas. and Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1136 (9th Cir. 2009) ("Sufficient service may be found where there is a good faith effort to comply with the requirements of Rule 4(e)(2) which has resulted in placement of the summons and complaint within the defendant's immediate proximity and further compliance with Rule 4(e)(2) is only prevented by the defendant's knowing and intentional actions to evade service."); Errion v. Connell, 236 F.2d 447, 457 (9th Cir. 1956) (finding proper service when sheriff threw the summons through a hole in a screen door after defendant ducked behind the door).
Defendants contend that the complaint should be dismissed under Rule 4(m) and Local Civil Rule 41.1 for failure to prosecute this case for eleven months. However, this argument is not presently before the Magistrate Judge and so it is not addressed in this Report and Recommendation. The Court does note, however, that there is no record of service of the summons and complaint on Defendant Joe Willis.
B. Sanctions
Defendants maintain that "it is evident that Plaintiff and his counsel engaged in bad faith conduct by causing to be filed false proofs of service." (Defs.' Mot. to Dismiss at 7:25-27.) Thus, Defendants seek to recover the sum of $7,000. However, as discussed above, the Court finds that Plaintiff's proofs of service are valid. Moreover, even assuming they were not, Plaintiff and his counsel should be entitled to rely on the sworn proofs of service of their registered process server. Defendants have failed to demonstrate that Plaintiff or his counsel engaged in bad faith. Accordingly, the Court RECOMMENDS that Defendants' request for sanctions be DENIED.
Defendants lowered their request for sanctions to $4,200 at the time they filed their reply because the motion to dismiss hearing had been taken off calendar. (Defs.' Reply at 6:16-18.) However, at the evidentiary hearing Defendants' counsel appeared to requesting the full $7,000 since he had to travel to attend that hearing. (Transcript at 51:9-15.)
III. CONCLUSION
After a thorough review of the pleadings and evidence presented to the Court and based on the foregoing, the Court hereby RECOMMENDS the following:
1. In ruling on Defendants' motion to dismiss, the District Judge consider that Plaintiff personally served Defendants J&D Enterprise and Mr. Dassa on February 20, 2012; and
2. Defendants' request for sanctions be DENIED.
This Report and Recommendation will be submitted to the United States District Court Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any party may file written objections with the Court and serve a copy on all parties on or before June 22, 2012. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed no later than June 29, 2012. The parties are further advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's Order. See Smith v. Frank, 923 F.2d 139, 141 (9th Cir. 1991).
IT IS SO ORDERED.