Al-Dailam v. Blinken

[7] 8 UNITED STATES DISTRICT COURT [9] EASTERN DISTRICT OF CALIFORNIA [10] 11 HAMOUD ALI ALI AL-DAILAM, et al., Case No. 1:24-cv-00108-JLT-CDB 12 Plaintiffs, ORDER GRANTING MOTION TO QUASH FOR INSUFFICIENT SERVICE OF PROCESS 13 v. AND DIRECTING DEFENDANTS TO RESPOND TO COMPLAINT 14 ANTONY BLINKEN, et al., (Doc. 8) 15 Defendants. 16 ORDER ADVANCING SCHEDULING CONFERENCE [17] 30-day Deadline [18] 19 Pending before the Court is the motion to quash for insufficient service of process by 20 Defendants Antony Blinken, the Embassy of the United States of Djibouti, and the United States 21 Department of State (“Defendants”), the opposition of Plaintiffs Hamoud Ali Ali Al-Dailam, and 22 Omar Hamoud Ali Al-Dailam (“Plaintiffs”), and Defendants’ reply. (Docs. 8, 13, 15). On May 15, 23 2024, the Honorable District Judge Jennifer L. Thurston referred the pending motion to the 24 undersigned for appropriate disposition. (Doc. 11). For the foregoing reasons, the Undersigned will 25 grant Defendants’ motion to quash for insufficient process.1 [27] 1 The Undersigned properly may hear and determine Defendants’ motion because the relief 28 granted by this order is not dispositive of Plaintiffs’ claims. See Mitchell v. Valenzuela, 791 F.3d 1166, 1168-69 (9th Cir. 2015). 1 Background 2 Plaintiffs initiated this action with the filing of a complaint asserting claims for declaratory and 3 injunctive relief against Defendants on January 23, 2024. (Doc. 1). On March 15, 2024, Plaintiffs 4 filed executed proofs of service of summons as to Defendants. (Doc. 5). Plaintiffs note they sent 5 certified mail addressed to the U.S. Attorney’s Office for the Eastern District of California in Fresno 6 California. Id. at 2. Plaintiff also sent certified mail to U.S. Attorney General Merrick Garland, 7 Antony Blinken, and the U.S. Embassy in Djibouti. Id. at 6-15. On May 8, 2024, Assistant U.S. 8 Attorney Elliot Wong notified Plaintiffs’ counsel that the U.S. Attorney’s Office had no record of 9 being properly served and identified an issue with the address used for service. (Doc. 13 at 2). 10 On May 14, 2024, Defendants filed the instant motion to quash for insufficient service of 11 process. (Doc. 8). Defendants assert Plaintiffs did not mail a copy of the summons and complaint for 12 the U.S. Attorney’s Office to the correct address. See id. at 3 (“The correct suite number for the U.S. 13 Attorney’s Office is suite 4401. Suite 1501 is the address of the Clerk’s Office of this Court.”). On 14 May 23, 2024, Plaintiffs filed a renewed executed proof of service of summons. (Doc. 12). Plaintiffs 15 note they sent certified mail addressed to the U.S. Attorney’s Office for the Eastern District of 16 California, Sacramento, California, on May 20, 2024. Id. at 1. 17 On May 28, 2024, Plaintiffs filed an opposition to Defendants’ motion for insufficient service 18 of process. (Doc. 13). Plaintiffs contend the original service was sufficient for purposes of providing 19 actual notice of the summons. Id. at 2. Plaintiffs argue all the relevant parties to the action received 20 the summons and that “the US Attorney was served at the U.S. Attorney’s Fresno Office, rather than 21 their preferred Sacramento Office.” Id. Plaintiffs argue in the alternative that the service error was 22 promptly corrected and that they have demonstrated good cause for their failure to timely serve 23 Defendants. Id. at 2-3. The following day, Plaintiffs filed a notice of errata to their opposition. (Doc. 24 14). On May 30, 2024, Defendants filed a reply to Plaintiffs’ opposition. (Doc. 15). Defendants note 25 Plaintiffs have now remedied their defect in service and withdraw their request in the alternative that 26 the Court dismiss the action. Id. at 2. Defendants reassert Plaintiff’s first attempt at service was 27 insufficient as the mailing was sent to the wrong addresses and not received by any branch of the U.S. [28] 1 Attorney’s Office. Id. Defendants argue their deadline to file a responsive pleading should be 60 days 2 from Plaintiffs’ second attempt at service. Id. (citing Fed. R. Civ. P. 12(a)(2)). 3 Discussion 4 Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of action for “insufficiency of 5 service of process.” The burden is on the plaintiff to demonstrate that the service of process was 6 sufficient. Mateo v. The M/S Kiso, 805 F. Supp. 792, 794 (N.D. Cal. 1992). “A federal court does not 7 have jurisdiction over a defendant unless the defendant has been properly served under Fed. R. Civ. P. 8 4.” Direct Mail Specialists v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988); see 9 Omni Capital International, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987) (“Before a 10 federal court may exercise personal jurisdiction over a defendant, the procedural requirement of 11 service of summons must be satisfied.”). “Rule 4 is a flexible rule that should be liberally construed 12 so long as a party receives sufficient notice of the complaint.” United Food & Commercial Workers 13 Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984). 14 Service of process on the United States is effectuated: 15 (A) by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical 16 employee designated by the United States attorney in writing filed with the clerk of the court or by sending a copy of the summons and of the complaint by registered or certified mail [17] addressed to the civil process clerk at the office of the United States attorney and [18] (B) by also sending a copy of the summons and of the complaint by registered or certified mail 19 to the Attorney General of the United States at Washington, District of Columbia, and [20] (C) if the action challenges an order of a nonparty agency or officer of the United States, send 21 a copy of each by registered or certified mail to the agency or officer. 22 Fed. R. Civ. Pro. 4(i)(1)(A)-(C). 23 Here, Plaintiffs did not comply with Rule 4(i) and sent the certified mail for the applicable 24 branch of the U.S. Attorney’s Office to an incorrect address. (Doc. 5 at 2). Therefore, Plaintiffs had 25 not complied with Rule 4(i) when they first attempted service. E.g., Soltan v. FDIC, No. CV 0826 06397 MMM (JWJx), 2009 WL 10699411 , at *4 (C.D. Cal. Feb. 17, 2009) (finding service defective 27 where summons and complaint delivered to incorrect address); accord Cuyler v. McDonough, No. 28 8:22-cv-263-WFJ-AEP, 2022 WL 21737653 , at *3 (M.D. Fla. Oct. 20, 2022). 1 The Undersigned next turns to Plaintiff’s request for extension of time nunc pro tunc to serve 2 Defendants. Under Rule 4(m), service of process is deemed insufficient “[i]f a defendant is not served 3 within 90 days after the complaint is filed.” Fed. R. Civ. P. 4(m). Rule 4(m) permits a district court to 4 grant an extension of time to serve the complaint. Mann v. American Airlines, 324 F.3d 1088 , 1090 5 (9th Cir. 2003). The court may even extend “time for service retroactively after the [90] day service 6 period has expired.” U.S. v. 2,164 Watches More or Less Bearing a Registered Trademark of Guess?, 7 Inc., 366 F.3d 767, 772 (9th Cir.2004); Mann, 324 F.3d at 1090 . If the plaintiff shows good cause for 8 failing to serve, the court is required to extend the time period for service. Lemoge v. United States, [9] 587 F.3d 1188, 1198 (9th Cir.2009); Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir.2007). If there is 10 no good cause, the court has discretion to either dismiss the complaint without prejudice or to extend 11 the time to serve the complaint. Lemoge, 587 F.3d at 1198 ; Efaw, 473 F.3d at 1040 . A district court 12 has broad discretion under Rule 4(m) to extend time for service even without a showing of good cause. 13 Efaw, 473 F.3d at 1040 ; 2,164 Watches, 366 F.3d at 772 . In making extension decisions under Rule 14 4(m), a district court may consider factors like a statute of limitations bar, prejudice to the defendant, 15 actual notice of a lawsuit, and eventual service. Scott v. Sebelius, 379 F. App'x 603, 604-05 (9th Cir. 16 2010); Efaw, 473 F.3d at 1041 . 17 The Undersigned finds Plaintiffs’ representations demonstrate good cause. Plaintiffs did 18 attempt to serve Defendants in good faith. (Doc. 5). They also attempted to quickly address their 19 error and properly erve the U.S. Attorney’s Office. (Doc. 12). Moreover, the Undersigned finds 20 Defendants have not experienced any prejudice resulting from this delay in service. Thus, the Court 21 finds Plaintiffs have shown good cause for their failure to time serve the U.S. Attorney’s Office. 22 Conclusion and Order 23 For the reasons discussed above, it is HEREBY ORDERED: 24 1. Defendants’ motion to quash for insufficient service of process (Doc. 8) is GRANTED; 25 2. Plaintiffs’ request for an extension of time nunc pro tunc to serve Defendants is 26 GRANTED; 27 3. Defendants SHALL RESPOND to Plaintiffs’ complaint within 30 days of entry of this 28 order; and 1 4. The scheduling conference set for September 26, 2024 (Doc. 10) is ADVANCED to 2 August 5, 2024, at 9:30am in Bakersfield (CDB) before Magistrate Judge Christopher D. 3 Baker. The parties shall appear at the conference remotely via Zoom video conference, an 4 counsel may obtain the Zoom ID and password from the Courtroom Deputy prior to the 5 conference. The parties are reminded of their obligation to file a joint scheduling report a 6 least one week in advance of the scheduling conference. See (Doc. 4). 7 ll TT IS SO ORDERED. Dated: _ June 6, 2024 | Word 9 UNITED STATES MAGISTRATE JUDGE