Macpherson v. United States of America et al

MOTION to Dismiss for Lack of Jurisdiction

S.D. Cal.November 28, 2016

1 16cv1557-DMS-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 LAURA E. DUFFY United States Attorney BRETT NORRIS Assistant U.S. Attorney California Bar No. 224875 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101-8893 Telephone: (619) 546-7620 Facsimile: (619) 546-7751 Email: brett.norris@usdoj.gov Attorneys for Defendant UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA STEVE MACPHERSON, Plaintiff, vs. UNITED STATES OF AMERICA and DOES 1 through 100, inclusive, Defendants. Case No. 15cv00769 BEN AGS UNITED STATES OF AMERICA’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT [FED. R. CIV. P. 12(b)(5)] Date: January 23, 2017 Time: 10:30 a.m. Courtroom: 5A Hon. Roger T. Benitez NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Case 3:15-cv-00769-BEN-AGS Document 13 Filed 11/28/16 Page 1 of 2 2 16cv1557-DMS-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 Please take notice that on January 23, 2017, at 10:30 a.m., in the Courtroom of the Honorable Roger T. Benitez, 221 West Broadway, Courtroom 5A, San Diego, CA 92101, the United States of America will move, and hereby does move, to dismiss Plaintiff’s Complaint (Doc. 1) pursuant to Fed. R. Civ. P. 12(b)(5). The United States brings this motion because Plaintiff failed to serve his Complaint in accordance with Fed. R. Civ. P. 4. This motion is based upon this Notice; the accompanying Memorandum of Points and Authorities; the Court’s file in this matter and any related matters; and on any item which the Court may consider at the hearing of this matter. DATED: November 28, 2016 LAURA E. DUFFY United States Attorney /s Brett Norris BRETT NORRIS Assistant U.S. Attorney Attorneys for United States of America Case 3:15-cv-00769-BEN-AGS Document 13 Filed 11/28/16 Page 2 of 2 1 16cv1557-DMS-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 LAURA E. DUFFY United States Attorney BRETT NORRIS Assistant U.S. Attorney California Bar No. 224875 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101-8893 Telephone: (619) 546-7620 Facsimile: (619) 546-7751 Email: brett.norris@usdoj.gov Attorneys for Defendant UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA STEVE MACPHERSON, Plaintiff, vs. UNITED STATES OF AMERICA and DOES 1 through 100, inclusive, Defendants. Case No. 15cv00769 BEN AGS POINTS AND AUTHORITIES IN SUPPORT OF THE UNITED STATES OF AMERICA’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Under Fed. R. Civ. P. 4(m), a plaintiff must serve his complaint within 120 days of filing it.1 If a plaintiff fails to meet this deadline, he must provide good cause for the failure. And if he cannot, the court may dismiss the complaint. Here, Plaintiff filed his complaint on April 8, 2015, but he did not serve it until October 5, 2016 - 546 days later. Can Plaintiff provide good cause for missing Rule 4(m)’s deadline by 426 days? 1 Rule 4(m) was amended on December 1, 2015. That amendment shortened the time for plaintiffs to serve their complaints from 120 days to 90 days. Here, Plaintiff filed his Complaint on April 8, 2015 -- before Rule 4(m) was amended. Thus, the amendment does not apply in this case, and Plaintiff had 120 days to serve his Complaint. Case 3:15-cv-00769-BEN-AGS Document 13-1 Filed 11/28/16 Page 1 of 6 2 16cv1557-DMS-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 A. FACTS Plaintiff claims he was injured after tripping at a post office in Carlsbad on April 13, 2013.2 B. PROCEDURAL HISTORY On April 8, 2015, Plaintiff filed a FTCA complaint against the United States.3 The clerk issued a summons later that day.4 One year later, Plaintiff had still not served his complaint on the United States, so the Court scheduled a hearing for May 2, 2016 pursuant to Local Rule 41.1.5 At that hearing, the Court ordered Plaintiff to serve the complaint by no later than June 2, 2016. The Court also scheduled a second Rule 41.1 hearing for June 13, 2016.6 On May 18, 2016, Plaintiff filed a certificate of service, purportedly indicating that he had served his complaint on the United States.7 In response to Plaintiff’s filing, the Court vacated the June 13, 2016 hearing.8 Plaintiff’s certificate of service was not accurate however, because he had still not completed service on the United States. In September of 2016, the Court scheduled a third Rule 41.1 hearing for October 3, 2016.9 But because Plaintiff failed to serve his complaint before that hearing, the Court continued the proceedings until October 31, 2016.10 Two days later, on October 5, 2016, Plaintiff finally completed service on the United States (546 days after filing his complaint) and the Court vacated the October 31, 2016 hearing.11 2 Doc. 1 at ¶ 3. 3 Doc. 1. 4 Doc. 2. 5 Doc. 3. 6 Doc. 4. 7 Doc. 5. 8 Doc. 6. 9 Doc. 7. 10 Doc. 9. 11 Doc. 10 and Doc. 12. Case 3:15-cv-00769-BEN-AGS Document 13-1 Filed 11/28/16 Page 2 of 6 3 16cv1557-DMS-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 C. SERVICE HISTORY Plaintiff served the United States Attorney General’s Office on May 17, 2016.12 (405 days after filing his complaint.) He served the U.S. Attorney’s Office for the Southern District of California and the Carlsbad Post Office on October 5, 2016.13 (546 days after filing his complaint.) He also mailed the summons and complaint to Mr. Zep Lui at the USPS Legal Department in San Francisco on October 11, 2016.14 (552 days after filing his complaint.) D. LEGAL AUTHORITY “A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Fed. R. Civ. P. 4.”15 And under Rule 4, service is not complete until the plaintiff serves the defendant with the summons and a copy of the complaint.16 When the defendant is the United States, service is not complete until the plaintiff serves the summons and complaint on both: (1) the United States Attorney for the district where the suit was filed (or the U.S. Attorney’s civil-process clerk); and (2) the United States Attorney General in Washington, D.C.17 In addition, Rule 4(m) requires plaintiffs to serve their complaint within 120 days of its filing.18 This requirement is designed to force parties and their attorneys to be diligent in prosecuting their cause of action.19 Plaintiffs who fail to serve defendants within the time limit risk dismissal. Rule 4(m) states: 12 Doc. 5 at p. 3. (There is no evidence Plaintiff made any attempt to serve his complaint before May 17, 2016.) 13 Doc. 10 at p. 1; Doc. 10-2 at p. 1. 14 Doc. 10-1. 15 Direct Mail Specialists v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). See also Vasic v. Patent Health, L.L.C., No. 13CV849 AJB MDD, 2013 WL 4716341, at *3 (S.D.Cal. Sept. 3, 2013). 16 FRCP 4(c). 17 FRCP 4(i). 18 Fed. R. Civ. P. 4(m) (prior to December 1, 2015 amendment). 19 Wei v. Hawaii, 763 F.2d 370, 371 (9th Cir.1985) Case 3:15-cv-00769-BEN-AGS Document 13-1 Filed 11/28/16 Page 3 of 6 4 16cv1557-DMS-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 If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. When a plaintiff fails to comply with the requirements of Rule 4, “a defendant may move to dismiss the complaint pursuant to [Fed. R. Civ. P.] 12(b)(5).”20 “Once a defendant challenges the sufficiency of service, the plaintiff bears the burden of establishing that the service was valid under Rule 4.”21 If Plaintiff cannot prove timely service, he must show good cause for his failure. And if Plaintiff cannot show good cause, the court has the discretion to dismiss without prejudice.22 To show good cause under Rule 4(m), a plaintiff must show “excusable” error, not just “inadvertence.”23 Ninth Circuit cases clarify that “good cause” is not shown by counsel’s scheduling difficulties or calendaring errors, by the illness or error of counsel’s staff, by lack of resources, by failure to obtain a defendant=s address, or by failure to read and understand Rule 4’s service requirements.24 20 Williams v. Locher, No. C10-5345BHS, 2010 WL 2872734, at *2 (D. Nev. Jul. 19, 2010). 21 Id., citing Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). 22 In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). See also Fed. R. Civ. P. 4(m); Wei, 763 F.2d at 372. 23 In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001); Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985) (dictum that good cause may be shown where defendant evades service; “inadvertence” of counsel insufficient). 24 Sheehan, 253 F.3d at 512 (service effected six days after expiration of 120-day period; counsel’s busy schedule and secretary’s illness not good cause); Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 1987) (service effected 160 days after filing complaint: plaintiff’s lack of resources not good cause for serving 40-days late); Townsel v. County of Contra Costa, California, 820 F.2d 319, 320 (9th Cir. 1987) (counsel’s ignorance of 120- day requirement not good cause); Hart v. United States, 817 F.2d 78, 80-81 (9th Cir. 1987) (failure to serve the United States Attorney General due to secretarial error not good cause); Reynolds v. United States, 782 F.2d 837, 838 (9th Cir. 1986) (counsel’s “fail[ure] to read Case 3:15-cv-00769-BEN-AGS Document 13-1 Filed 11/28/16 Page 4 of 6 5 16cv1557-DMS-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 E. ARGUMENT Plaintiff filed his complaint on April 8, 2015. Thus, under Rule 4(m), he was required to serve it by no later than August 6, 2015 (120 days after April 8, 2015). But Plaintiff failed to meet this deadline. And he was not just a few days, or even a few weeks late. He was 426 days late. (Or more than one year and two months late). There is no justification for such a lengthy delay. Plaintiff also cannot justify his failure to meet the Court’s extended service deadlines. In May of 2016 (more than a year after filing his complaint), the Court gave Plaintiff a second chance by ordering him to serve his complaint on or before June 2, 2016.25 But Plaintiff missed that deadline too. The Court gave Plaintiff a third chance in September of 2016, when it scheduled a third Rule 41.1 hearing for October 3, 2016, but again, Plaintiff failed to serve his complaint before the hearing. Plaintiff cannot justify his repeated inability to meet the Court’s deadlines. It is important to note that Plaintiff’s failure to timely serve his complaint prejudices the United States’ defense. It is now more than three-and-a-half years since the alleged incident occurred. This passage of time makes it harder -- if not impossible -- for the United States to identify, locate, and contact witnesses. And even if it can find the witnesses, their memories will undoubtedly be less reliable give the unnecessary passage of time. In addition, Plaintiff claims that he had to have surgery in February of 2014 because of the incident.26 The United States’ medical experts’ ability to examine, assess, and opine on Plaintiff’s alleged injuries and treatment will likely be compromised given that more than two-and-a-half years have passed since the surgery allegedly occurred, and even more time since Plaintiff’s original diagnosis. the Rules of Civil Procedure” not good cause); U.S. For Use and Benefit of DeLoss v. Kenner General, 764 F.2d 707, 710 (9th Cir. 1985) (failure to serve until 90 days after expiration of 120-day period; good cause not shown by “half-hearted” efforts to obtain defendant’s address); Wei, 763 F.2d at 372 (calendaring error not good cause). 25 Doc. 4. 26 Doc. 1 at ¶ 4. Case 3:15-cv-00769-BEN-AGS Document 13-1 Filed 11/28/16 Page 5 of 6 6 16cv1557-DMS-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 F. CONCLUSION Plaintiff failed to serve his complaint within the 120 days allowed by Rule 4(m). Instead, it took him 546 days. Plaintiff cannot justify this delay, nor can he deny the prejudice this delay causes for the United States. Accordingly, the United States respectfully asks the Court exercise its authority under Rule 4(m) and dismiss Plaintiff’s complaint. DATED: November 28, 2016 LAURA E. DUFFY United States Attorney /s Brett Norris BRETT NORRIS Assistant U.S. Attorney Attorneys for United States of America Case 3:15-cv-00769-BEN-AGS Document 13-1 Filed 11/28/16 Page 6 of 6 1 16cv1557-DMS-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 LAURA E. DUFFY United States Attorney BRETT NORRIS Assistant U.S. Attorney California Bar No. 224875 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101-8893 Telephone: (619) 546-7620 Facsimile: (619) 546-7751 Email: brett.norris@usdoj.gov Attorneys for Defendant UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA STEVE MACPHERSON, Plaintiff, vs. UNITED STATES OF AMERICA and DOES 1 through 100, inclusive, Defendants. Case No. 15cv00769 BEN AGS CERTIFICATE OF SERVICE I, hereby declare as follows: I am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, CA. 92101-8893. I am not a party to the above-entitled action. I have caused service of • UNITED STATES OF AMERICA’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT [FED. R. CIV. P. 12(b)(5)] • POINTS AND AUTHORITIES IN SUPPORT OF THE UNITED STATES OF AMERICA’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Case 3:15-cv-00769-BEN-AGS Document 13-2 Filed 11/28/16 Page 1 of 2 2 16cv1557-DMS-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 on the following parties by: ■ Electronic Notice/Service Mark V. Caruana, Esq. Law Offices of Mark V. Caruana 2928 Jefferson Street, Suite 2B Carlsbad, CA 92008 I declare under penalty of perjury that the foregoing is true and correct. Executed on November 28, 2016. s/ BRETT NORRIS Brett Norris Case 3:15-cv-00769-BEN-AGS Document 13-2 Filed 11/28/16 Page 2 of 2