Opinion
Civ. 1:19-cv-01881-CL
03-31-2021
DON RICARD, Plaintiff, v. KLAMATH COUNTY, OREGON, et al. Defendants.
REPORT AND RECOMMENDATION
MARK D. CLARKE, Magistrate Judge.
This case comes before the Court on defendant's Motion to Dismiss (#44). For the reasons discussed below, the Court recommends that defendant's motion to dismiss be DENIED.
BACKGROUND
This case is still in the pleadings stage, and yet, it has already been before this Court multiple times. First, on defendant's motion to sever (#9), which was granted. Then again on multiple motions to dismiss the Second Amended Complaint for failure to state a claim, which were also granted. This case is now before this Court on a new motion to dismiss, this time for lack of jurisdiction due to Plaintiffs failure to timely serve the newly named defendants. Throughout the duration of this case, counsel for Plaintiff and counsel for all defendants have remained the same.
Following the last series of motions to dismiss, Plaintiff was granted leave to file a Third Amended Complaint, which he did so on September 8, 2020. Plaintiffs Third Amended Complaint consists of a single claim for relief alleging violation of 42 U.S.C. § 12132, the "program access" requirement under Title II of the Americans with Disabilities Act. Plaintiff named Klamath County and the Klamath County Sheriffs Department as defendants in the new complaint. The defendants named in Plaintiffs original complaint were all employees of Klamath County, including the Klamath County Sheriff. Summons were issued for Klamath County and the Klamath County Sheriffs Department on September 15, 2020. Plaintiffs 90-day deadline to serve defendants with the Third Amended Complaint expired on December 7, 2020.
After some time passed, this Court contacted counsel for the parties and inquired as to the status of this case. Counsel for defendants informed this Court that the new defendants had not been timely served and that the case must be dismissed pursuant to Rule 4(m). Shortly after this email exchange, Plaintiffs counsel filed additional proposed summons for the new defendants (#42). Those summonses were issued on February 8, 2021. Defendants filed this motion to dismiss on March 1, 2021.
STANDARD OF REVIEW
Rule 4(m), provides, in relevant part:
If a defendant is not served within 90 days after the complaint is filed, the court- on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.Fed. R. Civ. P. 4(m). A court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Rule 4. Crowley v. Bannister, 734 F.3d 967, 974- 75 (9th Cir, 2013). "Neither actual notice, nor simply naming the person in the caption of the complaint, will subject defendants to personal jurisdiction if service was not made in substantial compliance with Rule 4." Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982). A motion to dismiss for lack of personal jurisdiction is allowed by motion, prior to filing a responsive pleading, pursuant to Fed.R.Civ.P. 12(b)(2).
DISCUSSION
Defendants bring this motion to dismiss for failure to comply with Rule 4(m) and the resulting lack of personal jurisdiction. This Court finds that defendants have since been served with the Third Amended Complaint and that defendants have not been prejudiced by plaintiff counsel's mistake.
Plaintiffs counsel concedes that he made a mistake in failing to serve defendants Klamath County and Klamath County Sheriffs Department with the Third Amended Complaint. Plaintiffs counsel explained that this mistake was due to many major unfortunate life events that the Court does not feel the need to repeat into the record. For review purposes, those details may be found in Plaintiffs Memorandum (#47) filed in opposition to this motion. Throughout the lifespan of this case, dating back to November 2019, counsel for defendants have remained the same and have continued to receive electronic service of all documents, including the Third Amended Complaint. Moreover, following this Court's ruling on the last series of motions to dismiss, counsel for defendants should have anticipated that Klamath County and the Sheriffs Department would be named in the Third Amended Complaint. In sum, the Third Amended Complaint was not a surprise to the county defendants or defendant's counsel, and they have made no showing of prejudice incurred due to Plaintiff counsel's inadvertent failure to serve. Therefore, this Court recommends that defendant's motion be denied.
RECOMMENDATION
For the reasons provided above, defendant's motion to dismiss (#44) should be DENIED.
This Report and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is filed. If objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See Fed. R. Civ. P. 72, 6. Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).