Fajardo et al v. United States Department of State et al

MOTION to Dismiss for Failure to State a Claim and Insufficient Service

S.D. Cal.May 16, 2017

1 16cv2980-LAB (MDD) 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 Daniel S. Crowley D.C. Bar # #989874 HANNON LAW GROUP, LLP 333 8th Street, NE Washington, D.C. 20002 Tel: (202) 232 - 1907 Fax: (202) 232 - 3704 Email: dcrowley@hannonlawgroup.com Attorney for Defendant Marco Rico UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA BERTHA VAZQUEZ FAJARDO, an individual, and BLANCA URIOSTEGUI, an individual, Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, BUREAU OF DIPLOMATIC SECURITY and MARCO RICO, an individual, Defendants. Case No.: 16cv2980-LAB (MDD) DEFENDANT MARCO RICO'S NOTICE OF MOTION AND MOTION TO DISMISS [FRCP 12(b)(5), 12(b)(6)] [Memorandum of Points and Authorities filed concurrently herewith] DATE: July 3, 2017 TIME: 11:15 a.m. CTRM: 14A JUDGE: Hon. Larry Alan Burns TO PLAINTIFFS AND THEIR ATTORNEY OF RECORD: PLEASE TAKE NOTICE that at 11:15 a.m. on July 3, 2017, or at such other time and date as the Court may set the matter to be heard in the courtroom of the Honorable Larry Alan Burns in the above Court, Defendant Marco Rico, through counsel, Case 3:16-cv-02980-LAB-MDD Document 11 Filed 05/16/17 PageID.75 Page 1 of 2 2 16cv2980-LAB (MDD) 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 HANNON LAW GROUP, LLP, will and now does bring their Motion to Dismiss Plaintiffs’ Complaint. Agent Rico brings this motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for which relief may be granted because it is clear from the face of the complaint that Plaintiffs’ claims are barred by the statute of limitations. Agent Rico also brings this motion pursuant to Rule 12(b)(5) for ineffective service of process. This motion is based on this Notice of Motion, the accompanying Memorandum of Points and Authorities, the files and records of this case, and such other matters as the Court may consider. DATED: May 16, 2017 Respectfully submitted, s/ Daniel S. Crowley Attorney for Defendant Marco Rico Email: dcrowley@hannonlawgroup.com Case 3:16-cv-02980-LAB-MDD Document 11 Filed 05/16/17 PageID.76 Page 2 of 2 1 16cv2980-LAB (MDD) 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 Daniel S. Crowley D.C. Bar # #989874 HANNON LAW GROUP, LLP 333 8th Street, NE Washington, D.C. 20002 Tel: (202) 232 - 1907 Fax: (202) 232 - 3704 Email: dcrowley@hannonlawgroup.com Attorneys for Defendant Marco Rico UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA BERTHA VAZQUEZ FAJARDO, an individual, and BLANCA URIOSTEGUI, an individual, Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, BUREAU OF DIPLOMATIC SECURITY and MARCO RICO, an individual, Defendants. Case No.: 16cv2980-LAB (MDD) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT MARCO RICO’S MOTION TO DISMISS [FRCP 12(b)(5), 12(b)(6)] [Notice of Motion and Motion filed concurrently herewith] DATE: July 3, 2017 TIME: 11:15 a.m. CTRM: 14A JUDGE: Hon. Larry Alan Burns I. INTRODUCTION. Defendant Marco Rico, through counsel, HANNON LAW GROUP, LLP, respectfully presents this memorandum of points and authorities in support of his motion to dismiss Plaintiffs’ complaint pursuant to Rules 12(b)(5) and 12(b)(6) of the Federal Case 3:16-cv-02980-LAB-MDD Document 11-1 Filed 05/16/17 PageID.77 Page 1 of 6 2 16cv2980-LAB (MDD) 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 Rules of Civil Procedure. Rico asks that the Court dismiss the complaint because Plaintiffs’ claims are barred by the statute of limitations and also because Plaintiffs failed to serve him within the time provided by Rule 4(m). II. BACKGROUND. According to the Complaint, Marco Rico, a Special Agent with the U.S. Department of State’s Bureau of Diplomatic Security, together with other federal agents, questioned Plaintiff Bertha Vazquez Fajardo on November 3, 2014. Compl. [Doc. # 1] ¶ 15. The agents wanted information about Ismael Uriostegui, a man with whom Fajardo had a daughter, Blanca Uriostegui, as part of an immigration investigation. Id. At the conclusion of the questioning, Agent Rico told Fajardo to call if she learned anything about Uriostegui. Id. Fajardo claims that later that same day, she learned something about Uriostegui and tried unsuccessfully to contact Agent Rico. Id. at ¶ 16. She alleges that even though she never reached him, Agent Rico contacted her, sending “numerous text messages” that were “sexual[ly] explicit in nature,” from November 3 through November 7, 2014. Id. at ¶ 17. Agent Rico then arrived at her home “allegedly for the reason of continuing the investigation,” but once there, he made inappropriate comments, kissed her, “touched/rubbed” her breasts and legs, and exposed himself. Id. at ¶¶ 19-21. Agent Rico then left, but continued to “harass and intimidate” Fajardo on November 10, 2014, by sending her text messages claiming he had information about her case and wanted to visit her again. Id. at ¶ 23. Plaintiff Blanca Uriostegui claims she was hiding in a closet during the encounter between Agent Rico and her mother. Id. at ¶ 22. Uriostegui alleges that she was frightened by Agent Rico, in part because he was armed, and that she feared that if she moved, he would “physically attack and kill her.” Id. Because of this, Uriostegui did not leave the confines of the closet until Agent Rico left. Id. Case 3:16-cv-02980-LAB-MDD Document 11-1 Filed 05/16/17 PageID.78 Page 2 of 6 3 16cv2980-LAB (MDD) 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 III. LEGAL STANDARD. “A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” Quisenberry v. Compass Vision, Inc., 618 F. Supp. 2d 1223, 1227 (S.D. Cal. 2007) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). “A claim may be dismissed only if ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Id. “A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when ‘the running of the statute is apparent on the face of the complaint.’” Dish Network L.L.C. v. Vicxon Corp., 923 F. Supp. 2d 1259, 1267 (S.D. Cal. 2013) (quoting Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2009)). It must “appear[] beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim.” Id. (quoting Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995)). Rule 12(b)(5) of the Federal Rules of Civil Procedure permits a court to dismiss an action for insufficient service of process. Fed. R. Civ. P. 12(b)(5). See Hayes v. Woodford, 444 F. Supp. 2d 1127, 1132 (S.D. Cal. 2006). Where the validity of service is contested, the burden is on the plaintiffs to prove proper service. Hayes, 444 F. Supp. at 1132. IV. ARGUMENT. A. PLAINTIFFS’ CLAIMS AGAINST AGENT RICO ARE BARRED BY THE STATUTE OF LIMITATIONS. Every one of the seven causes of action brought by Fajardo and Uriorstegui is time-barred. Cal. Civ. P. Code § 335.1 establishes a two-year limitations period for assault, battery, and personal injury claims. This applies to Plaintiffs’ claims for sexual battery (Count II), sexual assault (Count III), sexual harassment (Count IV), civil harassment (Count V), and intentional infliction of emotional distress (Count VII). See Beaudoin v. Schlachter, No. 15-15028, 2016 U.S. App. LEXIS 23230, at *1 (9th Cir. Dec. 23, 2016) (applying two-year limitation period of § 335.1 to sexual assault claim); Case 3:16-cv-02980-LAB-MDD Document 11-1 Filed 05/16/17 PageID.79 Page 3 of 6 4 16cv2980-LAB (MDD) 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 Villalvaso v. Odwalla, Inc., No. 1:10-CV-02369-OWW-MJS, 2011 U.S. Dist. LEXIS 44359, at *29 (E.D. Cal. Apr. 25, 2011) (“Plaintiff’s sexual battery claim is also subject to a two year statute of limitations period”); Tatum v. Schwartz, No. 2:06-CV-01440 JAM EFB, 2008 U.S. Dist. LEXIS 71102, at *9 (E.D. Cal. Aug. 8, 2008) (“the applicable statute of limitations for Tatum’s hostile work environment sexual harassment claim is two years”); Lauter v. Anoufrieva, 642 F. Supp. 2d 1060, 1106 (C.D. Cal. 2008) (“There is a two year statute of limitations for intentional infliction of emotional distress claims”). It also applies to claims brought under 42 U.S.C. § 1983, (Count I) which does not have its own statute of limitations. Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014) (applying § 355.1 to § 1983 claim); Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007) (state limitations period for personal injury cases apply to § 1983 actions). Plaintiffs’ claim for false imprisonment (Count VI) faces a shorter, one-year limitations period. Cal. Civ. P. Code § 340. See Thompson v. City of Shasta Lake, 314 F. Supp. 2d 1017, 1023 (E.D. Cal. 2004) (“California now provides for a specific one-year statute for false imprisonment”). All of the conduct alleged in the Complaint occurred and was known on November 10, 2014, or earlier. Plaintiffs allege that Agent Rico visited Fajardo’s home on November 3 and November 7, 2014, and that he sent her text messages between those dates, then again on November 10, 2014. As a result, all of Plaintiffs’ claims expired by November 9, 2016, or earlier. Because Plaintiffs did not file their complaint until December 8, 2016, nor plead any facts supporting a basis for tolling, their claims against Agent Rico must be dismissed with prejudice. Case 3:16-cv-02980-LAB-MDD Document 11-1 Filed 05/16/17 PageID.80 Page 4 of 6 5 16cv2980-LAB (MDD) 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 B. PLAINTIFFS’ COMPLAINT MUST BE DISMISSED FOR INSUFFICIENT SERVICE. Under Rule 4(m), the Court must dismiss an action without prejudice if a defendant is not served within 90 days after the complaint is filed. Fed. R. Civ. P. 4(m). To serve an employee of the United States in his individual capacity, a plaintiff must serve the individual in accordance with Rule 4(e), (f), or (g), and also serve the United States. Fed. R. Civ. P. 4(i)(3). Service upon the United States requires delivery of the summons and complaint to both the United States attorney for the district where the action is brought and the Attorney General of the United States at Washington, D.C. Fed. R. Civ. P. 4(i)(1). Thus, Fajardo and Uriostegui must deliver process to Agent Rico, the U.S. attorney, and the Attorney General. Plaintiffs filed their Complaint on December 8, 2016. On December 19, 2016, they submitted a Declaration of Service showing that copies of the summons and complaint were sent by certified mail to the civil process clerks for the U.S. Department of State and the U.S. Attorney for the Southern District of California. Pls.’ Decl. [Doc. #4]. On February 9, 2017, they filed a motion to continue their time to serve Agent Rico, which the Court granted on February 13, 2017, extending the deadline to April 10, 2017. Pls.’ Mot. Continue [Doc. #5]; Ord. [Doc. #6]. On March 21, 2017, Plaintiffs filed an affidavit of service showing that Agent Rico was personally served on March 17, 2017. Aff’d. of Process Server [Doc. #7]. Nevertheless, Plaintiffs have not sent a copy of the summons and complaint by certified mail to the Attorney General. See Pls.’ Decl. [Doc. #4]; Aff’d of Process Server [Doc. #7]. As a result, they have not served Agent Rico within the time provided by the Court, and all claims against Agent Rico must be dismissed. Case 3:16-cv-02980-LAB-MDD Document 11-1 Filed 05/16/17 PageID.81 Page 5 of 6 6 16cv2980-LAB (MDD) 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 V. CONCLUSION. Based on the foregoing, Defendant Rico respectfully requests that the Court dismiss all claims against him, with prejudice. DATED: May 16, 2017 Respectfully submitted, s/ Daniel S. Crowley Attorney for Defendant Marco Rico Email: dcrowley@hannonlawgroup.com Case 3:16-cv-02980-LAB-MDD Document 11-1 Filed 05/16/17 PageID.82 Page 6 of 6 1 16cv2980-LAB (MDD) 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 Daniel S. Crowley D.C. Bar # #989874 HANNON LAW GROUP, LLP 333 8th Street, NE Washington, D.C. 20002 Tel: (202) 232 - 1907 Fax: (202) 232 - 3704 Email: dcrowley@hannonlawgroup.com Attorneys for Defendant Marco Rico UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA BERTHA VAZQUEZ FAJARDO, an individual, and BLANCA URIOSTEGUI, an individual, Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, BUREAU OF DIPLOMATIC SECURITY and MARCO RICO, an individual, Defendants. Case No.: 16cv2980-LAB (MDD) PROOF OF SERVICE I, Daniel S. Crowley, declare as follows: I am a citizen of the United States over the age of eighteen years and a resident of the State of Montgomery County, Maryland; my business address is 333 8th Street, NE, Washington, D.C. 20002; I am not a party to the above-entitled action. On May 16, I filed the following documents in the Court’s electronic filing system:  NOTICE OF MOTION AND MOTION OF DEFENDANT MARCO RICO TO DISMISS COMPLAINT Case 3:16-cv-02980-LAB-MDD Document 11-2 Filed 05/16/17 PageID.83 Page 1 of 2 2 16cv2980-LAB (MDD) 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  MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT MARCO RICO’S MOTION TO DISMISS COMPLAINT I declare under penalty of perjury that the foregoing is true and correct. Executed on May 16, 2017 DATED: May 16, 2017 Respectfully submitted, s/ Daniel S. Crowley Attorney for Defendant Marco Rico Email: dcrowley@hannonlawgroup.com Case 3:16-cv-02980-LAB-MDD Document 11-2 Filed 05/16/17 PageID.84 Page 2 of 2