Maksoud v. Hopkins et al

RESPONSE in Opposition re Motion to Dismiss, Set Motion and R&R Deadlines/Hearings

S.D. Cal.February 20, 2018

-1- PLAINTIFF’S OPPOSITION TO DEFENDANT SUSAN PAYTON’S MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Marc Y. Lazo SBN: 215998 WILSON KEADJIAN BROWNDORF, LLP 1900 Main Street, Suite 600 Irvine, CA 92614 Tel: (888) 690-5557 Fax: (949) 234-6254 Attorneys for Plaintiff Dr. Charbel Maksoud UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA Dr. CHARBEL MAKSOUD an individual, Plaintiff vs. BRUCE HOPKINS, an individual; SCHRELL HOPKINS, an individual; PHILIPPE GUELTON, an individual; TIRRELL PAYTON, an individual; SUSAN PAYTON, an individual; SHAWN SMITH, an individual; PAUL WOODHULL, an individual; CHRISTIAN SALAMAN, an individual; PILLSBURY WINTHROP SHAW PITTMAN, LLP, a New York Limited Liability Partnership; BT SOFTWARE AND RESEARCH, INC., a Delaware corporation; SHEKNOWS MEDIA, a New York corporation; MOMENTUM MARKETING, an entity of unknown form;SOLUTIONS IQ, INC., a Washington corporation; ADLARGE, a New York corporation; and DOES 1-100, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 17cv362 H (WVG) PLAINTIFF’S OPPOSITION TO DEFENDANT SUSAN PAYTON’S MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Assigned: Hon. Marilyn L. Huff, Courtroom 15A Complaint filed: 2/23/2017 Hearing Time: 10:30 a.m. Date: March 12, 2018 Place: Courtroom 15A Case 3:17-cv-00362-H-WVG Document 64 Filed 02/20/18 PageID.545 Page 1 of 4 -2- PLAINTIFF’S OPPOSITION TO DEFENDANT SUSAN PAYTON’S MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Defendant Susan Payton (hereinafter, “Defendant”) seeks a motion to dismiss the claims brought against her individually in the action at issue on grounds of defective service under Fed. R. Civ. P. Rule 4. Defendant was personally served a copy of the complaint and summons at least as early as March 21, 2017 at her residence. Though Defendant attended an ENE conference in January 22, 2018, for which Defendant prepared and submitted an affidavit on the merits, and has engaged in informal discussions with Plaintiff also on the merits, Defendant now raises for the first time objections on the basis of defective service. II. PROCEDURAL BACKGROUND Plaintiff instituted this action on February 23, 2017 with the filing of a complaint naming Susan Payton as a Defendant. As Defendant admits in Defendant’s Motion to Dismiss, Defendant was served a copy of the initial complaint at Defendant’s place of residence in or around February 2017. Further, as set forth in the proof of service declaration, both a complaint and summons were served by San Diego Service of Process, LLC, a professional process server, on March 21, 2017, at Defendant’s valid address for receiving service. A receipt was duly received (see Exhibit 1), along with an invoice and proof of service (see Exhibit ) attesting to personal service at Defendant’s address of 4656 Marlborough St., San Diego, CA 92116. A First Amended Complaint was filed on April 28, 2017, and a Second Amended Complaint on July 10, 2017, both of which have now been served on Defendant at the same address. See Exhibit 2. Defendant contacted Plaintiff on or around January 17, 2018 for informal discussions as to the merits of the claims against her. In Defendant’s Motion to Dismiss, Defendant admits to appearing at an ENE conference to explore substantive grounds for her dismissal. III. LEGAL STANDARD Fed. R. Civ. P. 4 requires service in accordance with applicable state law, “[h]owever, ‘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., Inc., 840 F.2d 685, 688 (9th Cir. 1988). So long as a court has subject matter jurisdiction, “[a] general appearance or responsive pleading by a defendant that fails to dispute personal jurisdiction will waive any defect in service or Case 3:17-cv-00362-H-WVG Document 64 Filed 02/20/18 PageID.546 Page 2 of 4 -3- PLAINTIFF’S OPPOSITION TO DEFENDANT SUSAN PAYTON’S MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 personal jurisdiction.” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986), amended, 807 F.2d 1514 (9th Cir. 1987). “An appearance ordinarily is an overt act by which the party comes into court and submits to the jurisdiction of the court. This is an affirmative act involving knowledge of the suit and an intention to appear.” Id. IV. ARGUMENT a. Defendant was Properly Served Federal Rule of Civil Procedure 4(e) provides that an individual may be served in any judicial district of the United States by “following state law for serving summons in an action brought in courts of general jurisdiction in the state where the district is located or where service is made; or by (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e). Courts including this one have acknowledged that this rule should be liberally construed to find service adequate where sufficient notice of the complaint is provided. Royal & Sun All. Ins. Plc v. Castor Transp., LLC, No. 13-CV-01811-BAS DHB, 2014 WL 6088527, at *3 (S.D. Cal. Nov. 13, 2014). Here, Defendant admits in Defendant’s Motion to Dismiss to receiving a copy of the initial complaint at her place of residence as early as February 2017 following institution of the action in that same month. At the latest, Defendant was served the complaint and summons on March 21, 2017, with Plaintiff receiving and attaching herein the accompanying receipt, invoice, and proof of service at Defendant’s residential address. The proof of service attests to delivery of the summons alongside the complaint. Defendant admits to having full knowledge and notice of the subsequent amended complaints. Defendant gives no indication and does not contend that Defendant at any point lacked knowledge of the complaint for any appreciable length of time. Case 3:17-cv-00362-H-WVG Document 64 Filed 02/20/18 PageID.547 Page 3 of 4 -4- PLAINTIFF’S OPPOSITION TO DEFENDANT SUSAN PAYTON’S MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Thus, Defendant was sufficiently served within the meaning of Fed. R. Civ. Proc. Rule 4(e) under prevailing case law. b. Defendant has Waived any Defects in Service A general appearance or responsive pleading by a defendant that fails to dispute personal jurisdiction will waive any defect in service or personal jurisdiction. Benny, at 492. Informal contact between parties constitutes appearance when defendant shows clear purpose to defend the suit. Wilson v. Moore & Assocs., Inc., 564 F.2d 366, 369 (9th Cir. 1977). Here, regardless of the sufficiency of service, Defendant has since near the inception of the complaint been aware of the claims brought against her and proceeded accordingly. Defendant admits that after receiving the complaint, “[Defendant] contacted Plaintiff’s counsel and spoke with his assistant, Jamillah, about my lack of knowledge and involvement with the transactions set out in the Complaint.” See Motion to Dismiss 2:9. Other informal discussions occurred prior to and surrounding Defendant’s ENE conference on January 22, 2018. Defendant has at all times expressed intent to represent her own interests pro se, and headed into her ENE conference before Magistrate Judge William V. Gallo with an affidavit containing arguments for dismissal on the merits. Defendant has waived any defects in service because Defendant only now seeks to raise the issue despite having been aware of the complaint for at least 334 days and having submitted to the jurisdiction of the court as her own representative. V. CONCLUSION Defendant has been properly served within Fed. R. Civ. Proc. Rule 4(e) and applicable California law regarding service of process. Even if not, Defendant has waived any contentions of deficient service by not raising such before subjecting herself voluntarily to this Court’s jurisdiction. Defendant has by Defendant’s own admission now been aware of the complaint for around 360 days. Thus, this court should deny Defendant’s Motion to Dismiss. Dated: February 20, 2018 WILSON KEADJIAN BROWNDORF, LLP By: _________________________________ MARC Y. LAZO Attorney for Plaintiff Case 3:17-cv-00362-H-WVG Document 64 Filed 02/20/18 PageID.548 Page 4 of 4