Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dimaio v. County of Snohomish

United States District Court, W.D. Washington, Seattle

August 1, 2017

RICHARD DIMAIO, Plaintiff,
v.
COUNTY OF SNOHOMISH, DEPARTMENT OF THE SHERIFF, et al., Defendants.

          ORDER ON MOTION TO DISMISS AND MOTION FOR A MORE DEFINITE STATEMENT

          JAMES L. ROBART United States District Judge

         I. INTRODUCTION

         Before 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, [1]the relevant portions of the record, and the applicable law. Being fully advised, [2] the 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.

         II. BACKGROUND

         On 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)).

         This 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. ¶ 25.)

         On 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. ¶ 2.)

         On 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.

         III. ANALYSIS

         A. Motion to Dismiss for Insufficient Service of Process

         Defendants 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.

         1. Legal Standard

         Rule 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 quotation omitted).

         In some 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).

         2. Rule 4(c)(1)

         Rule 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.[3] (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.[4] 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.

         3. Rule 4(j)(2)

         Defendants 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) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.