Reyes v. Fircrest School, No. 2:2011cv00778 - Document 25 (W.D. Wash. 2012)
Court Description: ORDER granting in part and denying in part as moot Fircrest's 20 Motion to Dismiss by Judge James L. Robart.(RS) Modified on 8/1/2012/cc Reyes (RS).
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Reyes v. Fircrest School Doc. 25 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 GEMINI H. REYES, Plaintiff, 11 FIRCREST SCHOOL, Defendant. 14 15 16 ORDER ON MOTION TO DISMISS v. 12 13 CASE NO. C11-0778JLR I. INTRODUCTION This matter comes before the court on Defendant Fircrest Residential Habilitation 17 Center’s (“Fircrest”) 1 motion to dismiss (Mot. (Dkt. # 20)) pro se Plaintiff Gemini Reyes’ 18 complaint (Compl. (Dkt. # 1)). Fircrest asks the court to either (1) dismiss the complaint 19 or quash service under Federal Rule of Civil Procedure 12(b)(5) for failure to properly 20 21 22 1 Ms. Reyes improperly names “Fircrest School” as the defendant, however, sometimes Fircrest is referred to as “Fircrest School.” (See Mot. at 1.) ORDER- 1 Dockets.Justia.com 1 effectuate service, (2) dismiss the complaint under Rule 12(b)(6) for failure to state a 2 claim, or (3) require Ms. Reyes to file a more definite statement pursuant to Rule 12(e). 3 (See generally Mot.) 4 Having considered the submissions of the parties, the balance of the record, and 5 the relevant law, and no party having requested oral argument, the court GRANTS in part 6 and DENIES in part as MOOT Fircrest’s motion to dismiss (Dkt. # 20). The court grants 7 the motion under Rule 12(b)(5) and quashes Ms. Reyes’ prior attempts at service. The 8 court orders Ms. Reyes, within 30 days from the date of this order, to (1) properly serve 9 Fircrest as described in this order, and (2) file a submission with the court clearly 10 establishing proper service. The court will dismiss this action without prejudice if Ms. 11 Reyes fails to properly effectuate service and notify the court within the prescribed time 12 period. The court denies the remainder of Fircrest’s motion as moot. 13 14 II. BACKGROUND On June 16, 2011, Ms. Reyes filed her complaint against Fircrest, a state-run 15 facility for people with developmental disabilities that is managed by the Washington 16 State Department of Social and Health Services. 2 Although the handwritten complaint is 17 difficult to comprehend and illegible in part, the court construes it liberally in light of Ms. 18 2 Ms. Reyes does not allege in the complaint that Fircrest is a state entity. (See generally 19 Compl.) The court, however, takes judicial notice of the fact that Fircrest is a state entity because this fact is “capable of accurate and ready determination by resort to sources whose 20 accuracy cannot be reasonably questioned.” United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003) (internal quotations omitted). Fircrest’s website, located at http://www.dshs.wa.gov/ 21 ddd/Fircrest.shtml, identifies the habilitation center as a state entity. See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 213 n.7 (2008) (taking judicial notice of information on government website). 22 ORDER- 2 1 Reyes’ pro se status, Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1011 (9th Cir. 2011), 2 and discerns the following allegations. Ms. Reyes alleges that Fircrest violated her civil 3 rights. (Mot. at 2.) It appears from her complaint that she was on leave while her 4 husband was dying, that her husband died August 12, 2010, and that she was terminated 5 from her job on August 21, 2010. (Id. at 3.) Additionally, she alleges that she became 6 sick while outside the United States and that her medical insurance was cancelled 7 because she had used all of her sick leave and vacation time. (Id.) It is unclear from the 8 complaint if her illness began before her termination. (Id.) Ms. Reyes seeks payment for 9 her medical expenses. (Id.) 10 On April 4, 2012, the court issued an order to show cause why the court should not 11 dismiss the action because Ms. Reyes had not properly served Fircrest with a summons 12 and a copy of the complaint within the timeframe provided in Federal Rule of Civil 13 Procedure 4(m). (Order (Dkt. # 9).) On May 16 and May 18, 2012, Ms. Reyes filed 14 copies of her post office receipts that allegedly show items were mailed to Fircrest using 15 certified mail (Dkt. ## 15, 16). It is unclear, however, what Ms. Reyes mailed to Fircrest 16 because she did not file an affidavit or other explanation identifying the contents of her 17 mailings (See Dkt. ## 15, 16). 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ ORDER- 3 1 2 III. ANALYSIS Fircrest seeks to have the court order Ms. Reyes to properly effectuate service or 3 to dismiss the complaint under Rule 12(b)(5) for insufficient service of process. 3 (Mot. at 4 3.) Alternatively, Fircrest moves to dismiss Ms. Reyes’ complaint under Rule 12(b)(6) or 5 for the court to order Ms. Reyes to file a more definite statement under Rule 12(e). (See 6 generally Mot.) Because the court agrees with Fircrest, as discussed in more detail 7 below, that Ms. Reyes has not effectuated proper service as required by Rule 4, the court 8 is without jurisdiction to consider Fircrest’s remaining arguments. Jackson v. Hayakawa, 9 682 F.2d 1344, 1347 (9th Cir. 1982) (noting that “[d]efendants must be served in 10 accordance with [R]ule 4(d) of the Federal Rules of Civil Procedure, or there is no 11 personal jurisdiction”). The court thus grants Fircrest’s Rule 12(b)(5) motion and denies 12 the remainder of its motion as moot. 13 When a defendant challenges service, the plaintiff bears the burden of establishing 14 the validity of service as governed by Rule 4. See Brockmeyer v. May, 383 F.3d 798, 801 15 (9th Cir. 2004). As a general principle, “Rule 4 is a flexible rule that should be liberally 16 construed,” Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984), and “substantial 17 compliance with the service requirements of Rule 4 is sufficient so long as the opposing 18 19 3 The court considers the Rule 12(b)(5) motion even though Fircrest has appeared in this matter because Fircrest did so “without waiving objection as to improper service.” (Dkt. # 18.) 20 Therefore, the court does not consider Fircrest’s appearance to be a waiver of its right to litigate 21 service. See T-Scan Corp. v. BPA Tech., Inc., No. 2:10-CV-00470-MJP, 2011 WL 240517, at *1 (W.D. Wash. Jan. 24, 2011) (granting Rule 12(b)(5) motion to dismiss for insufficient service even after the defendant filed a notice of appearance that specifically disclaimed waiver of an 22 insufficient service of process defense). ORDER- 4 1 party receives sufficient notice,” Daly-Murphy v. Winston, 837 F.2d 348, 355 n.4 (9th 2 Cir. 1987). The sufficient notice exception, however, also “contains a justifiable excuse 3 requirement.” Id. (internal quotations omitted). A party’s pro se status, alone, is not a 4 justifiable excuse for the defect. See Hamilton v. Endell, 981 F.2d 1062, 1065 (9th Cir. 5 1992) (concluding that pro se plaintiff had not properly served defendants and that he 6 lacked good cause for the defective service). 7 Additionally, the Ninth Circuit Court of Appeals has held that a party’s failure to 8 strictly comply with Rule 4’s service requirement does not warrant dismissal if: “(a) the 9 party that had to be served personally received actual notice, (b) the defendant would 10 suffer no prejudice from the defect in service, (c) there is a justifiable excuse for the 11 failure to serve properly, and (d) the plaintiff would be severely prejudiced if his 12 complaint were dismissed.” Borzeka, 739 F.2d at 447 (adopting exception to strict 13 compliance for service made upon the United States government); see also S.J., ex rel. 14 S.H.J. v. Issaquah Sch. Dist., No. C04-1926RSL, 2007 WL 764916, at *2 (W.D. Wash. 15 Mar. 8, 2007) (concluding that the reasoning in Borzeka also applies to service upon local 16 governments). 17 Fircrest argues that Ms. Reyes failed to comply with Rule 4, which sets forth 18 procedures for serving a defendant. (Mot. at 3.) Rule 4(j)(2) governs service on state 19 entities, such as Fircrest, and requires that service on a state entity be made by either “(A) 20 delivering a copy of the summons and of the complaint to its chief executive officer; or 21 (B) serving a copy of each in the manner prescribed by that state’s law for serving a 22 summons or like process on such a defendant.” Fed. R. Civ. P. 4(j)(2). Washington State ORDER- 5 1 requires that service of a complaint and a summons upon a state agency must be done by 2 service “upon the attorney general, or by leaving the summons and complaint in the 3 office of the attorney general with an assistant attorney general.” RCW 4.92.020. 4 The court concludes that Ms. Reyes has failed to meet her burden of 5 demonstrating that she complied with Rule 4(j)(2) in serving Fircrest. She attempted to 6 effectuate service by certified mail, however certified mail is not sufficient under either 7 prong of Rule 4(j)(2). First, Rule 4(j)(2)(A) does not provide for service by mail. Fed. R. 8 Civ. P. 4(j)(2)(A); cf. Fed. R. Civ. P. 4(f)(2)(C)(ii) and 4(i)(1)(A)(ii); see also McCurdy v. 9 Cambridge Sch. Dist. No. 432, No. 1:10-CV-150-BLW, 2010 WL 4666046, at *1 (D. 10 Idaho Nov. 8, 2010) (noting that “service by mail is not addressed by Rule 4(j)(A)” and 11 then considering whether service by mail was appropriate under state law pursuant to 12 Rule 4(j)(B)); Yates v. Baldwin, 633 F.3d 669, 672 (8th Cir. 2011) (noting that certified 13 mail does not constitute “delivering” under Rule 4). Second, Ms. Reyes has not satisfied 14 Rule 4(j)(2)(B) because certified mail is not a valid way of effectuating service under 15 Washington law. RCW 4.92.020; see also Robinson v. Tacoma Cmty. Coll., No. C1116 5151BHS, 2011 WL 1883821, at *4 (W.D. Wash. May 17, 2011) (noting that mailing a 17 complaint to a state agency is not proper service under Washington law). Rather, 18 Washington law requires that service upon a state agency be made by either serving the 19 attorney general or “by leaving the summons and complaint in the office of the attorney 20 general with an assistant attorney general.” RCW 4.92.020. Accordingly, Ms. Reyes has 21 not met her burden of establishing her compliance with Rule 4(j)(2). 22 ORDER- 6 1 Additionally, Ms. Reyes’ failure to strictly comply with Rule 4(j)(2) is not excused 2 under Dale-Murphy’s sufficient notice exception or Borzeka’s four-part test because she 3 has not offered a justifiable excuse for her failure to properly serve Fircrest. Even if Ms. 4 Reyes’ failure to properly serve Fircrest or provide an explanation for the failure is 5 attributed to inadvertent error or ignorance of the governing rules, neither of these 6 reasons constitute good cause. See Townsel v. Cnty. of Contra Costa, 820 F.2d 319, 320 7 (9th Cir. 1987) (noting that ignorance of Rule 4 or inadvertent failure to comply with the 8 Rule’s requirement did not constitute good cause). 9 Because Ms. Reyes has not satisfied her burden of demonstrating proper service, 10 the court has discretion to either dismiss or retain the action. See Stevens v. Sec. Pac. 11 Nat’l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976). “Dismissal of a complaint is 12 inappropriate when there exists a reasonable prospect that service may yet be obtained. 13 In such instances, the district court should, at most, quash service, leaving the plaintiffs 14 free to effect proper service.” Arasan Chip Sys., Inc. v. Sonix Tech. Co. Ltd., No. 50915 CV-02172 JF PVT, 2010 WL 890424, at *1 (N.D. Cal. Mar. 8, 2010) (internal quotation 16 omitted); see also Randolph v. City of E. Palo Alto, No. C 06-07476 SI, 2007 WL 17 1232057, at *3 (N.D. Cal. Apr. 26, 2007) (noting that “[i]f the Court decides not to 18 dismiss, it quashes the ineffective service that has been made on the defendant and 19 provides the plaintiff the opportunity to serve the defendant again effectively”); S.J. v. 20 Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006) (noting that “even if 21 service were insufficient—on which we express no opinion—we could not simply affirm 22 dismissal because the district court has discretion to dismiss an action or to quash ORDER- 7 1 service”). Here, the court determines that there is a reasonable prospect that service can 2 be properly effectuated, and therefore, the court retains the action but quashes Ms. Reyes’ 3 prior attempts at service. Ms. Reyes must, within 30 days of the date of this order, 4 properly effectuate service on Fircrest by either (1) delivering a copy of the summons and 5 the complaint to the Department of Social and Health Services’ chief executive officer, or 6 (2) serving the Washington State attorney general or leaving the summons and a copy of 7 the complaint in the office of the Washington State attorney general with an assistant 8 attorney general. Fed. R. Civ. P 4(j)(2); RCW 4.92.020. Also, within 30 days of the date 9 of this order, Ms. Reyes must file a submission with the court clearly establishing her 10 proper service of the summons and a copy of the complaint on Fircrest. 11 IV. 12 CONCLUSION For the foregoing reasons, the court GRANTS in part and DENIES in part as 13 MOOT Fircrest’s motion to dismiss (Dkt. # 20). The court grants the motion under 14 Federal Rule of Civil Procedure 12(b)(5) and quashes Ms. Reyes’ prior attempts at 15 service. The court orders Ms. Reyes, within 30 days from the date of this order, to (1) 16 properly serve Fircrest as described in this order, and (2) file a submission with the court 17 clearly demonstrating proper service. The court will dismiss this action without prejudice 18 \\ 19 \\ 20 \\ 21 \\ 22 ORDER- 8 1 if Ms. Reyes fails to properly effectuate service and notify the court within the 2 prescribed time period. The court denies the remainder of Fircrest’s motion as moot. 3 Dated this 1st day of August, 2012. 5 A 6 JAMES L. ROBART United States District Judge 4 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER- 9
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