Opinion
No. CV-08-0656-PHX-FJM.
December 19, 2008
ORDER
The court has before it defendant Eric Schad's motion to dismiss (doc. 21), and plaintiff's response (doc. 28). Schad did not file a reply and the time for doing so has expired.
Schad moves to dismiss the complaint against him on the grounds that (1) he was not served with a summons as required by Rule 4, Fed.R.Civ.P., (2) the amended complaint fails to state a claim upon which relief can be granted, and (3) plaintiff's status report (doc. 15) contains an inaccurate statement.
Schad acknowledges that a copy of the amended complaint and status report were served on him, but he denies that a copy of the summons was served. On November 14, 2008, plaintiff filed a sworn affidavit of service signed by the process server attesting that on October 28, 2008, Schad was served with the summons, amended complaint, and status report (doc. 20). "A signed return of service constitutes prima facie evidence of valid service which can be overcome only by strong and convincing evidence." S.E.C. v. Internet Solutions for Business, Inc., 509 F.3d 1161, 1166 (9th Cir. 2007) (quotation omitted). Schad cannot overcome this presumption of service by merely denying that he was served. His motion to dismiss on this basis is denied.
Schad's bare assertion that the amended complaint fails to state a claim upon which relief can be granted is also an insufficient basis upon which to dismiss the complaint. The factual allegations in the complaint, taken as true for purposes of this motion, sufficiently state a claim under Rules 8(a) and 12(b)(6).
Finally, Schad contends that plaintiff's status report contains an inaccurate description of the evidence. Even if we assume the status report contains an inaccurate statement, this does not constitute an adequate basis upon which to dismiss the complaint.
Based on the foregoing, IT IS ORDERED DENYING Schad's motion to dismiss (doc. 21).