Michelle Smith v. Dysart Unified School District

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Michelle Smith, No. CV-25-03407-PHX-JZB 10 Plaintiff, ORDER 11 v. 12 Dysart Unified School District, 13 Defendant. [14] 15 Pending before the Court is Plaintiff Smith’s sealed “Emergency Motion to Enforce 16 Stay-Put Placement” (doc. 10) and Defendant Dysart Unified School District’s (the 17 “District”) “Response to Emergency Motion and Motion to Dismiss” (doc. 15).1 Plaintiff 18 commenced this action on behalf of her child A.M., seeking injunctive relief under the 19 Individuals with Disabilities Education Act (“IDEA”) “stay-put” provision. (Doc. 1 at 5) 20 (citing 20 U.S.C. § 1415 (j)). Specifically, Plaintiff seeks a court order requiring the District 21 to return A.M. to a PHASE2 program from the STC3 program A.M. currently attends. See 22 (id.); see also (doc. 10 at 2–3.) Defendant District subsequently filed its response, seeking 23 to dismiss this action for insufficient service of process under Rule 12(b)(5), failure to state 24 a claim under 12(b)(6), and because the “stay-put” issue is being currently addressed by 25 the Arizona Office of Administrative Hearings. (Doc. 15 at 1.) [26] 1 Both Parties’ motions are fully briefed, and this Court has jurisdiction to handle 27 these matters per the Parties’ consent to Magistrate Judge Jurisdiction. See (doc. 23.) 2 “Positive Engagement, High Expectations, Achievement, Student Centered, and 28 Effective Communication” program. (Doc. 15 at 3.) 3 “Structured Teaching Classroom” program. (Doc. 15 at 3.) 1 The Court will only address Defendant’s Rule 12(b)(5) argument. The Court finds 2 that Defendant’s 12(b)(5) motion is well-taken because Plaintiff has failed to effect proper 3 service upon the District. However, in the Court’s discretion, it will treat Defendant’s 4 12(b)(5) motion to dismiss as a motion to quash service. Then, and for the following 5 reasons, the Court will grant Defendant’s motion to quash service. Thereafter, Plaintiff 6 Smith shall have until December 22, 2025, to effect proper service of process upon 7 Defendant. Alternatively, Plaintiff shall have 30 days to file an amended complaint. 8 I. Background. 9 As alleged in Parties’ filings, A.M. is a six-year-old with cognitive disabilities. 10 (Doc. 10 at 71–72.) A.M. is currently a first-grade student attending Countryside 11 Elementary School (“Countryside”)—a school within the District. See (id. at 20); see also 12 (doc. 15 at 3.) Previously, A.M. attended Buckeye Elementary School within the Buckeye 13 Elementary School District. (Doc. 15 at 2.) While attending Buckeye Elementary School, 14 an Individualized Education Program (“IEP”) was implemented for A.M. on December 16, 15 2024. (Doc. 10 at 19.) This IEP called for A.M. to be provided “special education services 16 and accommodations within a regular education classroom for less than 40% of the school 17 day[,]” which translates to a LRE C program. (Doc. 15 at 2.) This is A.M.’s last 18 implemented IEP. See (doc. 10 at 19.) 19 Plaintiff then transferred A.M. to the District in 2025, where he was scheduled to 20 begin classes in early September. See (doc. 10 at 19); see also (doc. 15 at 2–3.) Prior to 21 A.M.’s first day of school, the District offered A.M. “educational services at a private day 22 school placement as commensurate placement” with his last implemented IEP. (Doc. 15 at 23 3.) Plaintiff Smith objected to the placement, and subsequently filed a special education 24 due process complaint on September 2, 2025. (Id.) Because of the due process complaint, 25 A.M. was originally placed in the PHASE program at Sunnyside on September 5, 2025, 26 which is an LRE C program that matches A.M.’s last implemented IEP. See (doc. 10 at 27 19); see also (doc. 15 at 3.) Ten days later, District provided notice to Plaintiff Smith that 28 A.M. would be transferred to the STC program at Sunnyside, which is another LRE C 1 program District provides at the school. See (doc. 10 at 21); see also (doc. 15 at 3.) 2 Defendant District explained that this transfer “provides [A.M.] the opportunity to safely 3 access . . . needed supports in a specialized setting . . . . [and] the team is concerned about 4 [A.M.’s] safety due to the high magnitude behaviors experienced in the PHASE 5 classroom.” (Doc. 10 at 21.) Additionally, Defendant noted that “[t]he STC classroom 6 better meets [A.M.]’s cognitive, academic, adaptive[,] and communication needs . . . . [and 7 that] all supports and services will be provided as documented in the IEP dated 8 12/16/2024.” (Id.) 9 After receiving notice of A.M.’s transfer to the STC program, Plaintiff Smith filed 10 her Complaint on September 17, 2025. See (doc. 1.) It does appear that Plaintiff attempted 11 to serve Defendant through their legal counsel. See (doc. 17 at 6.) Currently, there is an 12 ongoing Arizona Office of Administrative Hearing that has not been fully resolved. (Doc. 13 15 at 5.) On October 1, 2025, Plaintiff filed her sealed Emergency Motion to Enforce Stay14 Put Placement.4 See (doc. 10). 15 II. Legal Standards. 16 Under Rule 12(b) of the Federal Rules of Civil Procedure, a Defendant may file a 17 motion seeking to dismiss a case for several delineated defects, such as failure to effect 18 proper service of process. Fed. R. Civ. P. 12(b)(5). Under Rule 12(b)(5), a party may move 19 to dismiss claims against themselves “for insufficient service of process under Rule 4.” 20 Smoketree Holding LLC v. Apke, No. CV-22-02123-PHX-DLR, 2023 WL 6377272 , at *3 21 (D. Ariz. Sept. 29, 2023). Absent service of process pursuant to Rule 4, the Court does not 22 have personal jurisdiction over the action. Jackson v. Hayakawa, 682 F.2d 1344 , 1347 (9th 23 Cir. 1982). The serving party—here, Plaintiff—“bears the burden of establishing the 24 validity of service.” Apke, 2023 WL 6377272 , at *3. “In the absence of service of process 25 (or waiver of service by the defendant), a court ordinarily may not exercise power over a 26 party the complaint names as defendant.” Murphy Bros., Inc. v. Michetti Pipe Stringing, [27] 4 Due to Plaintiff’s emergency motion, the Court directed that the U.S.M.S. serve a 28 service packet including the Emergency Motion, a summons, the Court’s October 2, 2025 Order, and the Complaint. (Doc. 11 at 1.) 1 Inc., 526 U.S. 344, 350 (1999). “Rule 4 is a flexible rule that should be liberally construed 2 so long as a party receives sufficient notice of the complaint.” Crowley v. Bannister, 734 3 F.3d 967 , 975 (9th Cir. 2013). However, if service was not made “in substantial compliance 4 with Rule 4,” neither actual notice nor naming an opposing party in the caption of the 5 complaint is sufficient to give the Court personal jurisdiction over the case. Hayakawa, 6 682 F.2d at 1347. 7 III. Discussion. 8 Defendant District seeks dismissal of this action under Rule 12(b)(5) for insufficient 9 service of process. (Doc. 15 at 4.) Specifically, Defendant contends that as it is a local 10 government entity, Plaintiff had to comply with Federal Rule of Civil Procedure 4(j)(2) 11 and Arizona Rule of Civil Procedure 4.1(h), which require service of process to be effected 12 upon either the Governing Board or an individual designated to receive service of process. 13 (Id.) Because service of the Complaint and summons was effected on the Director of 14 Security Operations, who is not a designated to receive service of process, District asserts 15 that this action should be dismissed for insufficient service of process. (Id.) 16 Because the District is a local government entity, service must be effected in 17 accordance with Rule 4(j)(2). Fed. R. Civ. P. 4(j)(2). Rule 4(j)(2) notes that: 18 A state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by: [19] (A) delivering a copy of the summons and of the complaint to its chief [20] executive officer; or 21 (B) serving a copy of each in the manner prescribed by that state’s law 22 for serving a summons or like process on such a defendant. 23 Fed. R. Civ. P. 4(j)(2)(A)–(B). Arizona’s rule for serving a government entity provides 24 that: 25 If a governmental entity has the legal capacity to be sued and it has not waived service under Rule 4.1(c), it may be served by delivering a copy of [26] the summons and the pleading being served to the following individuals: [27] * * * 28 (4) for service on any other governmental entity: 1 (A) the individual designated by the entity, as required by statute, to receive service of process; or [2] (B) if the entity has not designated a person to receive service [3] of process, then the entity’s chief executive officer(s), or, 4 alternatively, its official secretary, clerk, or recording officer. 5 Ariz. R. Civ. P. 4.1(h)(4). 6 In the case at hand, service of process was effected upon Jason Yeager, the Director 7 of Security at the District. (Doc. 15 at 4–5.) Jason Yeager is neither the District’s chief 8 executive officer nor an individual authorized by the District to receive service of process.5 9 Additionally, while Defendant had actual notice of this litigation, actual notice is 10 insufficient to give the Court jurisdiction over this action where Rule 4 has not been 11 substantially followed. See Hayakawa, 682 F.2d at 1347. Because Plaintiff failed to serve 12 either the Governing Board or its appointed representative, Rule 4 has not been 13 substantially followed. Therefore, Defendant District has not been properly served. 14 In the absence of proper service of process, the Court cannot “exercise power over 15 a party the complaint names as defendant.” Murphy Bros., Inc., 526 U.S. at 350 . “However, 16 in its discretion, this Court ‘may treat a motion to dismiss for insufficient service of process 17 as a motion to quash service instead.’” Warmack v. Riveria, No. CV-20-02298-PHX-SPL, [18] 2021 WL 1662691 , at *2 (D. Ariz. Apr. 28, 2021) (quoting Dillard v. Red Canoe Fed. 19 Credit Union, No. C14-1782JLR, 2015 WL 1782083 , at *3 (W.D. Wash. Apr. 17, 2015)); 20 S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288 , 1293 (9th Cir. 2006) (“[T]he district 21 court has discretion to dismiss an action or to quash service.”). “Where it appears that 22 effective service can be made and there is no unfair prejudice to the defendant, quashing 23 service rather than dismissing the action, and leaving the plaintiff free to effect proper 24 service, is the appropriate course.” Warmack, 2021 WL 1662691 , at *2 (quoting Dillard, [25] 2015 WL 1782083 , at *3). [26] 5 “Under Arizona law, the District may be served by serving the entire governing 27 board, Batty v. Glendale Union High Sch. Dist. No. 205, 212 P.3d 930 , 933–34 (Ariz. Ct. App. 2009), or by serving the official secretary, clerk or recording officer of the entity as 28 established by law.” Vargas v. Snowflake Unified Sch. Dist. No. 5, No. CV-17-08035-PCTJAT, 2017 WL 2653056 , at *1 (D. Ariz. June 20, 2017) (cleaned up). 1 The Court finds that quashing service as opposed to dismissing this action is 2 appropriate in light of the facts. Here, Plaintiff Smith is pro se. Her Complaint was filed 3 on September 17, 2025, which is only 54 days ago, which is well within the 90-day time 4 limit provided in Rule 4. See Fed. R. Civ. P. 4(m). While Plaintiff did not execute proper 5 service, she still attempted to serve Defendant. And importantly, it is clear that Defendant 6 had actual notice of Plaintiff’s action seeing as it filed a response to Plaintiff’s Emergency 7 Motion. Therefore, the Court, in its discretion, will treat Defendant’s motion to dismiss 8 pursuant to rule 12(b)(5) as a motion to quash service, and will grant the motion.6 9 IV. Conclusion. 10 For the foregoing reasons, the Court finds that Plaintiff has failed to properly serve 11 Defendant District. Accordingly, the Court will grant Defendant District’s Response to 12 Emergency Motion and Motion to Dismiss (doc. 15) in part. First, the Court, in its 13 discretion, will convert Defendant’s 12(b)(5) motion to a motion to quash service. Second, 14 the Court will grant Defendant’s motion to quash service. Thereafter, the Court will 15 dismiss the remainder of Defendant’s motion without prejudice. 16 While the Court does not take a position on Defendant’s Rule 12(b)(6) motion at 17 this time, Plaintiff Smith is put on notice that her Complaint and Emergency Motion may 18 be subject to dismissal for failure to state a claim upon which relief may be granted. Under 19 Rule 12(b)(6), dismissal is proper where “the complaint either (1) lacks a cognizable legal 20 theory or (2) fails to allege sufficient facts to support a cognizable legal theory.” Somers v. 21 Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). Plaintiff’s Complaint appears to plead 22 insufficient facts to support a cognizable legal theory. First, the facts surrounding this case, 23 under the United States Court of Appeals for the Ninth Circuit’s precedent, necessitates an 24 application of the traditional preliminary injunction balancing test to receive a 20 U.S.C. § 25 1415(j) injunction.7 Second, based on the pleadings, it does not appear that a violation of 26 6 For service of process as a pro se plaintiff proceeding in forma pauperis, Plaintiff is directed to review Fed. R. Civ. P. 4(c)(3). 27 7 Generally, a motion to stay put acts as an “automatic preliminary injunction, meaning that the moving party need not show the traditionally required factors (e.g., 28 irreparable harm) in order to obtain preliminary relief.” Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 1037 (9th Cir. 2009). However, this automatic standard only applies [1] 20 U.S.C. § 1415 (j) has occurred, because under the United States Court of Appeals for 2 the Ninth Circuit’s precedent, A.M. has not been moved from their then-current educational 3 placement.8 4 Therefore, Plaintiff may file an amended complaint by December 10, 2025. If 5 Plaintiff files an amended complaint within that period, the December 22, 2025, deadline 6 to execute proper service of process will be vacated. Thereafter this Court will screen the [7] where the motion is brought before the original adjudicative body—here, the Arizona 8 Office of Administrative Hearings—or a court hearing the due process appeal. See N.D. ex rel. Parents Acting as Guardians ad Litem v. Haw. Dep’t of Educ., 600 F.3d 1104 , 1112 9 (9th Cir. 2010) (“The preliminary injunction would order the [Department of Education] to recognize the invocation of the stay-put provisions. The alleged violation is that Hawaii 10 is not providing the protection of the stay-put provision. The claim underlying the preliminary injunction is that the stay-put provision applies. In essence, the preliminary 11 injunction is an injunction for an injunction.”). Because this case amounts to “an injunction for an injunction,” the traditional 12 preliminary injunction balancing test applies. See id. To receive a preliminary injunction, Plaintiff must show that: “(1) they are likely to succeed on the merits; (2) they are likely to 13 suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest.” Sierra Forest 14 Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). 15 8 Where a parent disagrees with the contents of an IEP created for their child, that parent may challenge that IEP by requesting an administrative due process hearing. See 16 Marcus I. ex rel. Karen I. v. Dep’t of Educ., Haw., 868 F. Supp. 2d 1015 , 1016–17 (D. Haw. 2012), aff’d sub nom. Marcus I. ex rel. Karen I. v. Dep’t of Educ., 506 F. App’x 613 17 (9th Cir. 2013) (citing 20 U.S.C. § 1415 (b)(6), (f)(1)(A)). During the pendency of a due process hearing: [18] unless the State or local educational agency and the parents otherwise agree, 19 the child shall remain in the then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent 20 of the parents, be placed in the public school program until all such proceedings have been completed. [21] 20 U.S.C. § 1415 (j). While the IDEA does not define ‘then-current educational placement,’ 22 the United States Court of Appeals for the Ninth Circuit has “interpreted the phrase to mean the placement set forth in the child’s last implemented IEP.” L.M. v. Capistrano Unified 23 Sch. Dist., 556 F.3d 900, 902 (9th Cir. 2009); Johnson ex rel. Johnson v. Spec. Educ. Hearing Off., Cal., 287 F.3d 1176 , 1180 (9th Cir. 2002) (“For the purpose of § 1415(j)’s 24 ‘stay put’ provision, the current educational placement is typically the placement described in the child’s most recently implemented IEP.”). 25 For example, in S.S. v. Eugene Sch. Dist. 4J, the United States Court of Appeals for the Ninth Circuit addressed a situation where a child’s program was modified while the 26 child remained in the same school after the district underwent after programmatic changes. See J.S. by and through S.S. v. Eugene Sch. Dist. 4J, No. 23-35522, 2024 WL 4750499 , at 27 *1 (9th Cir. Nov. 12, 2024). Although the child’s program underwent modification, the school district “had no obligation to provide services in the District’s [new] program []in a 28 manner identical to the services provided in [prior] program [.]” Id. Because both programs satisfied the child’s last implemented IEP, the change did not violate the IDEA. Id. 1 amended complaint pursuant to 28 U.S.C. § 1915 (e), and if the amended complaint 2 survives screening, it shall be served upon Defendant. 3 Accordingly, 4 IT IS ORDERED that this Court, in its discretion, treats the Rule 12(b)(5) portion 5 of Defendant’s Response to Emergency Motion and Motion to Dismiss (doc. 15) as a 6 motion to quash service of process. The Court GRANTS the motion to quash service of 7 process. 8 IT IS FURTHER ORDERED that because the Court cannot exercise power over 9 Defendant absent proper service of process, the Court DENIES the remainder of 10 Defendant’s Response to Emergency Motion and Motion to Dismiss (doc. 15) WITHOUT 11 PREJUDICE. Defendant may refile its Motion if and when proper service is achieved. 12 IT IS FURTHER ORDERED that Plaintiff must properly serve Defendant District 13 by DECEMBER 22, 2025. If Defendant District is not properly served within that time 14 period, and absent a showing of good cause, the Clerk of Court is kindly directed to 15 DISMISS Defendant District. Such dismissal shall not preclude Plaintiff from filing an 16 appeal of the Arizona Office of Administrative Hearing’s decision with this Court if an 17 adverse decision is rendered in the due process proceedings. 18 IT IS FURTHER ORDERED that the Clerk of Court shall provide Plaintiff a 19 service packet including a copy of the Complaint (doc. 1), this Order, and both summons 20 and request for waiver forms for Defendant. 21 IT IS FURTHER ORDERED that if Plaintiff seeks service to be executed by the 22 USMS, Plaintiff MUST complete and return the service packet with the proper address for 23 Defendant’s governing board or its representative appointed to receive service of process 24 on or before DECEMBER 8, 2025, to ensure prompt and proper service is made by the 25 December 22, 2025, deadline. 26 IT IS FURTHER ORDERED that, in the alternative, Plaintiff may file an 27 amended complaint remedying the deficiencies noted above by DECEMBER 10, 2025. If 28 Plaintiff files an amended complaint within that period, the Clerk of Court is kindly || directed to vacate the December 22, 2025, deadline for proper service to be executed by. 2|| This Court will screen the amended complaint pursuant to 28 U.S.C. § 1915 (e) upon || receipt. If the amended complaint survives screening, it shall be served upon Defendant. 4 Dated this 10th day of November, 2025. 5 Lo 6 elvan □ 7 United States Magistrate Judge [28] -9-