United States District Court, W.D. Washington, Seattle
ORDER ON MOTION TO DISMISS AND MOTION FOR A MORE
L. ROBART United States District Judge
the court is Defendants County of Snohomish, Department of
the Sheriff (“Snohomish County Sheriff's
Office” or “Sheriff's Office”) and
Snohomish County Sheriff Ty Trenary's (collectively,
“Defendants”) motion to dismiss pro se
Plaintiff Richard DiMaio's complaint pursuant to Federal
Rules of Civil Procedure 12(b)(5) and 12(b)(6) and for a more
definite statement pursuant to Federal Rule of Civil
Procedure 12(e). (MTD (Dkt. # 8).) The court has considered
the parties' submissions, the relevant portions of the
record, and the applicable law. Being fully advised,
court grants in part and denies in part Defendants'
motion. Specifically, the court (1) denies Defendants'
motion to dismiss pursuant to Rule 12(b)(5), but quashes Mr.
DiMaio's prior attempt at service and grants Mr. DiMaio
an additional 30 days from the date of this order to properly
serve Defendants; (2) grants Defendants' motion to
dismiss pursuant to Rule 12(b)(6) and dismisses Mr.
DiMaio's complaint without prejudice and with leave to
amend within 30 days; and (3) denies as moot Defendants'
motion for a more definite statement.
January 30, 2017, Mr. DiMaio commenced this litigation by
filing a motion for leave to proceed in forma
pauperis (“IFP”). (IFP Mot. (Dkt. # 1).) The
court granted Mr. DiMaio's motion on February 7, 2017
(IFP Order (Dkt. # 2)), and docketed his complaint that day
(see Compl. (Dkt. # 3)).
lawsuit stems from Mr. DiMaio's termination from the
Snohomish County Sheriff's Office. (Id. ¶
13.) Mr. DiMaio asserts that he was hired as a sheriff's
deputy by the Snohomish County Sheriff's Office in 2003.
(Id. ¶ 5.) Mr. DiMaio alleges that his former
girlfriend falsely accused him of wrongdoing, a
“Snohomish Internal Affairs Investigator”
credited the false accusations as true, and “a
pre-disciplinary investigator” recommended that Mr.
DiMaio be terminated. (Id. ¶¶ 7-8, 10-11.)
Mr. DiMaio contends that, based on these events, on February
3, 2015, Snohomish County Sheriff Ty Trenary terminated Mr.
DiMaio's employment without cause. (Id. ¶
13.) Mr. DiMaio claims that as a result he has
“experienced financial loss, job and career loss, [and]
emotional pain, fear, and anxiety.” (Id.
March 20, 2017, Mr. Perryman personally delivered a copy of
the summons in this case, along with a binder of exhibits, to
Ashley James, a Law Enforcement Technician at the Snohomish
County Sheriff's Office. (James Decl. (Dkt. # 9) ¶
2.) Mr. Perryman did not deliver a copy of the complaint.
(Id. ¶ 4.) Ms. James was working at the front
desk of the Sheriff's Office when Mr. Perryman handed her
the summons and the binder of exhibits. (Id. ¶
April 6, 2017, Defendants moved to dismiss Mr. DiMaio's
complaint pursuant to Federal Rules of Civil Procedure
12(b)(5) and 12(b)(6) and for a more definite statement
pursuant to Federal Rule of Civil Procedure 12(e).
(See MTD.) That motion is now before the court.
Motion to Dismiss for Insufficient Service of
contend that service of process was insufficient in two
respects: (1) Mr. DiMaio served only a copy of the summons
and did not include a copy of the complaint as Federal Rule
of Civil Procedure 4(c)(1) requires, and (2) Mr. DiMaio did
not serve the person required under Rule 4(j)(2) to
effectuate service on a local government entity. (MTD at 4.)
The court concludes that Mr. DiMaio has not effectuated
proper service under Rule 4. As more fully explained below,
the court exercises its discretion to quash Mr. DiMaio's
attempt at service of process and extend the time for Mr.
DiMaio to effectuate proper service.
12(b)(5) authorizes a defendant to move for dismissal due to
insufficient service of process. See Fed. R. Civ. P.
12(b)(5). A federal court cannot exercise jurisdiction over a
defendant unless the defendant has been properly served under
Rule 4. Direct Mail Specialists, Inc. v. Eclat
Computerized Tech., 840 F.2d 685, 688 (9th Cir. 1988).
Without substantial compliance with Rule 4,
“‘neither actual notice nor simply naming the
defendant in the complaint will provide personal
jurisdiction.'” Id. (quoting Benny v.
Pipes, 799 F.2d 489, 492 (9th Cir. 1986),
amended, 807 F.2d 1514 (9th Cir. 987)). “Once
service is challenged, [a] plaintiff bear[s] the burden of
establishing that service was valid under Rule 4.”
Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir.
2004). A plaintiff meets his prima facie burden to show that
service was proper by producing the process server's
affidavit of service. Wells Fargo Bank NA v. Kuhn,
No. CV137913GAFFFMX, 2014 WL 12560870, at *2 (C.D. Cal. July
23, 2014). “Unless some defect in service is shown on
the face of the return, a motion to dismiss under Rule
12(b)(5) requires [the] defendant to produce affidavits,
discovery materials, or other admissible evidence
establishing the lack of proper service.” Id.
(internal quotation omitted). The burden then shifts back to
the plaintiff “to produce evidence showing that the
service was proper, or creating an issue of fact requiring an
evidentiary hearing to resolve.” Id. (internal
instances, Rule 4 may be liberally construed “so long
as a party receives sufficient notice of the
complaint.” United Food & Commercial Workers
Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir.
1984). The Ninth Circuit has held that failure to strictly
comply with service requirements does not warrant dismissal
if: “(a) the party that had to be served personally
received actual notice, (b) the defendant would suffer no
prejudice from the defect in service, (c) there is a
justifiable excuse for the failure to serve properly, and (d)
the plaintiff would be severely prejudiced if his complaint
were dismissed.” Borzeka v. Heckler, 739 F.2d
444, 447 (9th Cir. 1984) (internal quotation omitted);
see S.J. ex rel. S.H.J. v. Issaquah Sch. Dist., No.
C04-1926RSL, 2007 WL 764916, at *2 (W.D. Wash. Mar. 8, 2007)
(applying Borzeka's four-part test and
concluding that the plaintiffs substantially complied with
the requirement of Rule 4(j) by serving the administrative
assistant to the superintendent, notwithstanding that such
service did not strictly comply with the rule). A
plaintiff's pro se status alone does not provide
a justifiable excuse for defective service. See Hamilton
v. Endell, 981 F.2d 1062, 1065 (9th Cir. 1992).
4(c)(1) requires that “[a] summons . . . must be served
with a copy of the complaint” and that “[t]he
plaintiff is responsible for having the summons and complaint
served within the time allowed by Rule 4(m).”
Fed.R.Civ.P. 4(c)(1). Mr. Perryman's proof of service
does not state that he served a copy of the complaint. (Proof
of Serv. (Dkt. # 5).) Ms. James states in her declaration
that “[t]here was no copy of a Complaint included in
the documents the man delivered.” (James Decl. ¶
4.) Although Mr. DiMaio argues in response that Mr. Perryman
“served the Summons along with the complaint in its
entirety, ” Mr. DiMaio does not support his assertion
with an affidavit or declaration from Mr. Perryman or any
other witness. (Resp. at 2; see Dkt.) Mr.
DiMaio's own assertions in his responsive brief, not made
under penalty of perjury, do not satisfy the requirements of
28 U.S.C. § 1746 for unsworn declarations and
affidavits. See 28 U.S.C. § 1746. Mr.
DiMaio has not met his burden of producing “evidence
showing that the service was proper, or creating an issue of
fact requiring an evidentiary hearing to resolve.”
Kuhn, 2014 WL 12560870, at *2.
also contend that Mr. DiMaio did not serve the persons
prescribed under the Civil Rules to effectuate service on a
local government entity. (MTD at 4-5.) Mr. DiMaio names as
defendants the Snohomish County Sheriff's Office and
Snohomish County Sheriff Ty Trenary in his official capacity.
(See Compl. ¶¶ 2-3.) First, the Snohomish
County Sheriff's Office-a county department-is not a
legal entity subject to suit. McCamey v. Snohomish Cty.
Sheriff's Office, No. C17-0063JCC-BAT, 2017 WL
1504234, at *2 (W.D. Wash. Mar. 29, 2017), report and
recommendation adopted, 2017 WL 1496437 (W.D. Wash. Apr.
25, 2017). A plaintiff “must name the city or county
itself as a party to the action, not the particular municipal
department or facility where the alleged violation
occurred.” Id.; see also Mays v. Pierce
Cty., No. C14-5291RBL, 2015 WL 5102600, at *3 (W.D.
Wash. Aug. 28, 2015) (“The capacity to be sued is
limited to the county itself.”). Second, when a
plaintiff brings a lawsuit against a government officer in
his official capacity, a court treats the suit as a suit
against the entity that employs the officer. Kentucky v.
Graham, 473 U.S. 159, 166 (1985); see Monell v.
Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658,
690 n.55 (1978) (“[O]fficial-capacity suits generally
represent only another way of pleading an action against an
entity of which an officer is an agent.”); Updike
v. Clackamas Cty., No. 3:15-CV-00723-SI, 2015 WL
7722410, at *2-4 (D. Or. Nov. 30, 2015) ...