KAMALA D.H.ARRrs, State Bar No.

146672

Attorney General ofCalifhrnia

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SCOTr 1"1. WYCKOFF, State Bar No. 191367

Supervising Deputy Attorney General

MATTHEW T. RESMER, State Bar ;...)0. 269 38
Deputy Attorney G~~neral
2550 Mariposa Mall, Roorn 5090

Fresno, CA 93721

Telephone: (559)
1680

Fax: (559) 4455106

E-mail: Matthew.Besrner@doj.ca.gov

AttorlU:~)'sfor Dekndants

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IN THE UNITED

DIS1"RJCT COURT

FOR THE EAS'rERN DISTRICT OF CA1JFORNIA

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REHAN SHI;:JKH,

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MEMORANDUM. IN SUI>I)ORT OF
MO']'ION 'ro J)lSMISS FORINSlJFFICIEN'r
SF~RVICI1: OFI'ROCESS PlJRSl1ANT TO

v.

RUl,li:12(b)(5)

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1 GEB AC IS

BRIAN KELLY Secn~tary, California

June 2, 2014

State Tnmsportation Agency and Mark

Tweet~" Manager, J)epartment of\1otor

9:00
10, 1 Floor
Honorable (Jurland

Vehicles,

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IS

Trial Date:
------~~~~~~~----~~--~~-~--~~

Burrell, Jr.

TBA

Action Filed: March

2014

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lNTRODUCTION

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PlaintiffRehan Sheik attempted to f;crve by mail a copy of the surnmons and. COllrt

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documents on defendants Brian Kelly, Sel;retary of CaLiforniH State Transportation Agency, and
Mark

Manager, DCpat1ment of Motor Vehicles. Plaintiff's

of process is

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defective because h(;~ did not personally serw the defendants, and he ildled to comply with rnai!

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service requirements. 'fherefbre, his complaint should be dismissed.

BACKGROUND
Plaintiff mailed the

"SUIll11l0nS

ServiL:e" to the defendants. Doc.

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Eyster, and the package

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along wi1l! Court documents via United

Postal

I. Tht: package to detendaut Kelly was signed fbI' by 'I',

defendant Twcety was signed )r by

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SOllleonc

at the Department or

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Motor Vehicles on Marcil 26, 2014. Doc. 6.
Plaintiff did not include the waiver fhrms rt~quired under Rule 4(d) nor did hI;) include th(;

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Notice and Acknowledgment required for mail service under Calif()rlua Code of'Civil

sccliou415.30. On April 10, 2014, \1atthew T. Besmer, counsel fbI defendants e~mailed Plaintiff

to confmn that defendants had 60 days

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service. Bcsmer

"Ihe USPS served on DMV on March

stipulate." Bcsmcr Dee!.,,! 4. On April 11,2014, Mr. Besmer respoll(kd to plaintiff explaining

that service was dcl:ecl Ive because he did not include the waiver required under Rule 4(d), and

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PrOCCdtllT

respond to the complaint based on his attempted mail

On April 10,2014, PlaintilTwrotc back that his records showed that

and that "\ il f you need a fewexlnl

we

CcUl

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alternatively, he did not include tht~ Notice and Adulowledgrncnl required under Califbrnia Code

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ofCivii Procedure soct1011415.30. Besmer Decl., "14.

On April 14, 2014, Mr. Besrner spoke to PlaintitTon the phone. Besmer Deel., ~15. Mr.

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Besmer stated that his (.:lienI8 had agreed to waive personal

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be entitled to 60 days to respond to I

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Del1mdanls having 60 days to respond. Besmer Dcc!.. '15. Mr. Besmer otIered to respond within

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50 days consistent with the linK' period allowed fbr mail service under Cali[()rnia Codc of Civil

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Procedure section 415.30. Plaintiff objected to this time and oftercd Defendants I extra

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13esmer Oed, ~I 5. When Mr. Hosmer stated thaI the defcndants had

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service in accordance with the federal rules and that they would

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respond to the cornplaint, Plaintiff stated that he ncedt:d additionallimc 10 think aboul it. Besmer

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DeeL, '15. At that time, Mr. Beslm:r inJ{)rmccl Plaintiff that time was nmning short and that he

and in exchange, they would

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complaint. Bcsmer

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proces:;. Bcsmer Deel.,

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to wai vo personal
led to at least 50 days to

would be filing a motion to disITli::;s on grounds of insufficient serv

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Plaintiff objeeted to

LA W AN D ARGUMENT
J.

SERVICE OF PROCESS WAS INSUFFICIENT

Rule 12(b)(5) states that a motion

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dismiss may be made on grounds

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serviee of process. Fed. R. Civ. P. 12(b)(5). Service upon a

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deliv~~l"ing

a copy o1't110 surnmons and ofthe complaint to its

statt~

insuffkiclll

agency must be made by: ;'(A}

oflicer; or (13)

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serving a copy ofeach in the manner prescribed by that state's law fi)!'

a summons

Of

lik"

process on such a dt:ft:ndan1." Fed. R. eiv. P. 4U)(2). Servict;, however, may

waived. FccL R.

Civ. P. 4(d). The waiver procedure requires plaintiff to mail a copy of the cornplaint along with

two copies ofthe waiver limn and a means to rdum the waiver. Fed. R. eiv. P 4(d)( 1)(C). A

dctlmdant who

service has 60 days to respond to the cOlliplaint. FelL R. eiv P. 4(d)(3).

Alternatively, in Califbrnia servil;<;: may be made by mailing u copy oCthe SUllunons and

tbe complaillito the defendant with two copies of a Notice and Acknowledgment of service. CaL

eiv. Pro. 415.JO. A defendant has 20 days to return the Notice and Acknowledgment, at which

timc St~rv ice is deemed cOlnplete. Cal. eiv. Pro. 415.30. Therea ller, a defimdant has 30 days to

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respond to the cmnplaint. Cal. eiv. Pro. 430.40.

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tiere, Plaintiff did not deliver a copy of the summons and the complaint to the <ktbndants.

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Doc. 6 (stating that Plaintiff mailed the summons and court doculm~nts

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Further, Plaintiff did not include a request for waiver

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include a copy of the NOlke and Acknowkdgmenl required for mall service under CaJiilwnia

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Codt: of eivi 1 Pr(K~edurc sectioll 415.30. Besmer Ded"

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deficlt;Jl(;ies, Ddbndants agreed to waive service in t~xchange Jbr having at least 50 dnys to

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respond to the complaint Besmcr [JeeL,

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think about Defendallls' agreemcnt to waive service. Bestnt;r Oed, ~I

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II.

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tht; defendants).

or service ullder RlIk~ 4(d)' and he did not

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Notwithstanding these

PlailltitTstated that

nt::edcdnlort~ time to

PLMNTIFF'S PROOF OF SERVICE: IS OEHCIENT

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"Unless service is waived, proof of servict:: must be made to th(: court. Except for service

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by a United States Marshall or deputy marshal, proof must be by the server's affidavit:' Fed. R.
Civ. Pro. 4(1)( IJ. Plainliff did not make proof of service by affidavit Doc. 6. Theret(lre, proof of

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service is deficient

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Ill,

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PEI~SONAL .h.!RISUlCTION IS LACKING

OVERTHE 1)[<;l"ENllANTS

"I n the absence of servicc of proe0ss (or waiver of st:l'vice by

delbndant), H court

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ordinarily may not exercise pow0r over a party the cornplaint nanle:s as defi::ndant." MllflJhy lJros.

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v. At/chelli Pipe Stringing, 526 U.S. 344, 350,,351 (1999), BeJore a court may exercist~ personal

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Docurncnt B

jurisdiction ovt:r a detendant, the procedural rcqllir~rnent of service of summons IHUS! be

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satisfied. Id.
Here, personal jurisdiction over the defendants is lacking because PIa Intiff

failed to

cOlnply with the prot:edure service ofproct:ss requirements. Therefore, defendants should be

dismissed pursuant to Federal Rule of Civil Procedure 12(b)(2).

CONCLUSION

Based on the fbrcgoing, Detendants motion to dismiss lhr insufficient st:rvice

should granted.

Dnted: April 16, 2014

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D. HARRIS
Attornt'y General of CaliloC'llia
It WYCKOFF
Supervising Deputy Attorney General

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/s/ :Mattliew q: (8esmer

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MA'nl1E\,V T. BESMER

Deputy

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Sli bnrltted,

KAMALA

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Respect fully

or process

Atlorm~y

(Jenera 1

Attorneysjiw D([fendants
SA20 14J ]5505
9510214S.doc