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KAMALA D. HARRIS, State Bar No. 146672

Attorney Gen~:ral of California

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SCOlT H WYCKOFF, State Bar No. 191367

Supervising Deputy Attorney General

MATTHEW T. BESMER, Slate Bar No, 269118
Deputy Attorney (Jenera]
2550 Mariposa Mall, Room 5090

Fresno, CA
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Telephone: (559) 477-1680

(559) 445~51 06

E-mail: Mattbew.Besmer((l).doj.ca.gov

Aflo]'m:vs/or Defendants

IN TIlE LJNITED STATES DISTRICT COURT

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FOR TH

EASTERN DISTRICT OF CALIfORNIA

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II

REHAN SlU:lKH,

2:J4-cv-751 GEB AC

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Plaintiff,

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Sb~llVICE

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BRIAN KEJ it Y Secreta ry, California

Stutt~ Transportation Agency and Mark
Tweety, Manager, Dcpnrtment of Motor
Vehicks,

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OF I)ROCESS PlJRSUANT '1'0

RULE 12(b)(5)

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MIi.:MORANDlJM IN SlJPl'OR'r OF
MO'l')ON TO DISMISS FOR INSlHiFJCIE:\fT

Defendants.
~~~----~.~~~~~~~----~~~--~~

Date:
Time:
Courtroom:

Judge:

May
2014
10:00 a.m.
gth Floor
IIonorableAUisDl1 Claire

Trial Date:
TBA
Action Filed: March

2014

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INTRODLICTIOl\:

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Plaintiff Rehan Sheik attempted to serve by mail a copy oftht~ summons and court

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documents on defendants Brian Kelly, Secretary of California State Transportation Agency, and

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Mark fwcety, Manager, Department of Motor Vehiclcs. Plaintiffs service of process is

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detectiv(~

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service requirements, Therefore, his eornplailtt should be disrnissed.

because he did not personally serve the deHmdants, and he flilted to comply with nmil

BACKGROUND

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PlaintHf mailed the "su111mons along with

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('01111 documents via

Uniied States Postal

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Service" to the defendants. Doc. 6,

1. ]'he package to detbndantKelly was signed filr by

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Eyster, and tht;: package fbr defenda.l1t Tweety was signed for by someone at the Department of
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Motor Vehicles on March

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Plaintiff did not include the waiver liml\s required under Rule 4( dl nor did

include the

Notice and Acknowledgment l'equired fbr mail serv.ice und\"!r Calitornia C'ode ofCivi] Procedure

section 415.30. On April 10, 2014, Matthew T. Besrncr, counsd for defendants e~mailed Plaintiff

to confinn that delt:mdauts had 60 days to respond to the complaint based on hls attempted mail

service. Besmer Dec!., ~13. On April 10, 2014. Plaintiff wrote back that his records showed that

"the USPS served on DMV on March 26" und that "[i]fyou nt;ed a few extra days, we can

stipulate." 13l~smer DeeL, ~T 4. On April 11,1014, Me Besmer responded to plaintiff explaining

that service was defective lK~cause he did not include the waiver required under Ruk 4(d), and

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altematively, hel did not include the Nolice and Acknowledgrnent required under Caldi)[!lia Cod\:

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of Civil Procedure section 415 ..~O. Besmer Decl.,

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C)n April 14, 2014, Mr. Besmer spoke to Plaintiff on the phone. Besnll~r Dec!., '1 5. Mr.

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l3i::1smer stated that his clients had agreed to waive personal

and in

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they would

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be entitled to 60 days to respond to the complaint. Besmer Dec!.,

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Delendants having 60 days to respond, Bcsmer Decl.,

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50 days eonsistl;:rll with the time period allowed for mail service

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Procedure section 4 1

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Besrner Decl.,

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service in accordance with the tederal rules and that they would be t~ntitled to at

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respond to the cornplaint, Plaintiff stated that he needed additional tiIne to think about it Besmer

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Dec!.,

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Mr. Besmer oftered to respond within

Plaintiff objected to this tillle and

When Mr. BeslI1cr slaled that the defendants had

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lksm(~r

en lifiJrnia Code 0 f Ci vi 1
Defendarlts ] 5 extra
to waive personal
50 days to

infiH'll1ed Plaintiff that time was running :;l1ort and that

would be flling a mot ion to dismiss on grounds of insufficient

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Plaintiff objected to

ofproeess, Besmer Dec]"

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LAW AND ARGUMENT

SERVICE 01. PROCESS \VAS INSI.WI"lCIENT

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RlIle 12(b)(Sl states that a motion to dismiss trwy be made on grollnds of insuffkient

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service of process. Feel. R, eiv, P. 12(b)(5), Service upon a state

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delivering

it

must be made by: "(A)

copy l)flhe summons and ofthc complaint to its chief (;;xecu tive officer; or (B)

Document

sl!rving a copy of each in the manner prescribed by that

Jaw for serving a summons or like

process on such a defendanL" Fed. R. ('iv. P. 4(j)(2). Service, however Inay be waived. Fed. I~

Civ. P. 4(d). The waiver procedure requires plaintiff to mail a copy ofthe complaint along with

two copies of the waiver form and a means to retum the waiver. Fed.

defendant who waives service has 60 days to respond to the complaint. Fed. R. eiv. P. 4(d)(3).

Alternatively, in Calitiwnia service may be made by mailillg II copy of the summons and

eiv. P. 4(d)(\)(C). A

the cOInplnint to Ihe ddendaut with two copies of a Notice and Acknowledgment of service. Cal.

eiv. Pro. 415.30. A ddendant has 20 days to return the Notice and Acknowledgment, at which

time service is deemed complete. Cal. Civ. Pro. 415.30. Therealler, a deiendant has 30

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to

respond to the complaint. CaL Civ. Pro. 430AO.

Here, Plaintiff did not deliver a copy 0 f the summons and the corllplair.t to the deft~ndants.

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Doc. 6 (stating that Plamtiff mailee! the summons and court documents to Ihe defendants).

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Further, Plaintiff did not include a request 11)r waiver of service lmder Rule 4(d), and he did not

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include a copy of the Notice ami Acknowledgment requiwd for mall service under California

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Code of Civil Procedure section 415.30. Besmer DecL,

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deficienCies, Defendants agreed to waive service in exchange for having at lea,>t 50 days to

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respond to the complaint. Besmer DecL, '1'14, 6. Plaintifl stated that he needed more time to

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think about Defendants' agreement to waive service, 13esmer Ded., ~I 5

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II.

Notwithstanding these

PLAINTIFF'S PnOOF OF SERVin: IS DEFICIENT

"Unless service is waived, proofofservice lllUst be made to the court. f~xcept

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':'1 LH;.

fiJI'

service

by a United States Marshall or deputy marshal, proof must be by the server's attldaviL" Fed. R.
Civ. Pro. 4(/)(1). Plaintiff did not make proofofserviee by aflldavit Doc. 6. Therelbre, proofof

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service is deficient.

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111.

.PERSONAL .JllluSIHCTION IS LACKING OVER THE DE.FENDANTS

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"In tilt) absence of service of process (or waiver of service by the defbndant), a coU!1

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ordinarIly rnay not t'xercise power over it patty tbe l:omplaint nmnes as dr;;:fimdant." Aturphy Bros. !

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v. Michi.'lfi Pipe Stringing, 526 U.S. 344, 350~351 (1999). Befbre a court may exercise personal

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jurisdiction over a defendant, the procedural requirement
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f serv iCt~ of sumrnonsmust be

satisl1cd. ld

Here, personal jurisdiction over the defendants is lacking because Plaintiff

fa-iled t.o

comply with tht~ procedure service of process requirements. Therefbre, defendants should be

dismis~,ed pursuant to Federal Rule of Civil Procedure 12(b)(2).

CONCLUSiON

Based on the H)]'cgoing, Defendants motion to dismiss ibr insufficient service of process

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should

Dated: April J 6, 20] 4

RcspectJlllly subnritlcd,

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KAMALA D.H.ARRlS

II

SCOTf

Attorney General of C:aJi Lmli a

H. WYCKOFF

Supervising Deputy Attorney (3eneral

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/s/ :Mattliew rr. CJ3eS1fr!er

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MATTHEW'rBESMER

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Deputy Attorney General

A ttorrw)Js jilr D!~/~'ndan's

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SA2014115505
95102186.doc

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to Rule 12(b)(5) (2: 14cy751

mm AC