Opinion
23-CV-2105 JLS (DEB)
07-15-2024
KEVIN MICHAEL PROUT, Plaintiff, v. U.S. E.E.O.C.; SAN DIEGO COUNTY; and S.E.I.U., Defendants.
ORDER GRANTING MOTIONS TO DISMISS (ECF NOS. 16, 23)
HON. JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE
Two matters are presently before the Court. First is Defendant Service Employees International Union, Local 221's (“SEIU”) Motion to Dismiss (“SEIU's Mot.,” ECF No. 16), in response to which Plaintiff Kevin Michael Prout filed an Opposition (“Opp'n to SEIU's Mot.,” ECF No. 19). Also before the Court are Defendant County of San Diego's (the “County”) Motion to Dismiss (“County's Mot.,” ECF No. 23) and supporting Memorandum (“County's Mem.,” ECF No. 23-1), along with Plaintiff's Opposition (“Opp'n to County's Mot.,” ECF No. 27) and the County's Reply (“County's Reply,” ECF No. 29) thereto. The Court took these matters under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). ECF No. 22 at 11; ECF No. 28 at 1. Having carefully considered the Parties' arguments and the law, the Court GRANTS both Motions.
SEIU's Motion is accompanied by a Request for Judicial Notice (“RJN,” ECF No. 16-1). The Court will deny the RJN as moot because the documents attached to it do not aid in resolving SEIU's Motion.
BACKGROUND
On November 16, 2023, Plaintiff initiated this action by filing his Complaint (“Compl.,” ECF No. 1), and a Summons (“Summons,” ECF No. 2) was issued the same day. The Complaint targeted an eclectic combination of defendants, including the U.S. Equal Employment Opportunity Commission (“EEOC”), the County, SEIU, and Costco Mission Valley (“Costco”). See generally Compl. As the Court has dismissed Costco and the EEOC from this action, only SEIU and the County remain.
After concluding the Complaint's Costco-related allegations had no connection to those involving the other Defendants, the Court severed Plaintiff's Costco claims from this action for improper joinder. See ECF No. 22 at 8-11. Meanwhile, the Court dismissed the EEOC as a defendant-based on the doctrine of sovereign immunity-for lack of subject matter jurisdiction. See id. at 5-8; ECF No. 26 at 1-2.
The factual allegations in the Complaint are difficult to parse. The Court has interpreted the Complaint to target three distinct factual transactions, only two of which remain relevant. First, the Complaint alleges the County violated Plaintiff's rights by “refus[ing]” to provide him with a mail-in ballot. See Compl. at 5, 9-10. Second, Plaintiff accuses SEIU (of which he has been a member) and the County (his former employer) of fraudulently depriving him of retirement benefits. See id. at 11-12.
In this Order, pin citations to Plaintiff's filings refer to the blue CM/ECF page numbers stamped across the top margin of each page.
The Complaint also touches on several potential causes of action, though matching them to specific Defendants is challenging. As relevant here, Plaintiff states he is bringing claims against state and/or local officers under 42 U.S.C. § 1983 for violations of his constitutional and statutory rights. See id. at 4. The Complaint also seems to contemplate state law claims for, among other things, breach of fiduciary duty. See id. at 11.
In particular, Plaintiff asserts violations of the First, Fourth, Eighth, Thirteenth, Fourteenth, Fifteenth, Twenty-Fourth and Twenty-Sixth Amendments of the United States Constitution; Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; and the Voting Rights Act, 52 U.S.C. §§ 10301 et seq. See Compl. at 5-7.
SEIU and the County filed their respective Motions at different times. SEIU initially submitted its Motion on February 12, 2024, but the Court temporarily paused briefing pending the resolution of joinder-related issues. See ECF No. 20 at 3. The Court later set a new briefing schedule, permitting-but not requiring-SEIU to file a reply by May 3, 2024. ECF No. 22 at 11. Meanwhile, the County filed its Motion on May 10, 2024.
After the events above, Plaintiff filed a Notice of Appeal (“Notice,” ECF No. 30) in this action. Given the jurisdictional effects such notices sometimes have, the Court will address the Notice before evaluating the Motions to Dismiss.
PLAINTIFF'S NOTICE OF APPEAL
Generally, “[o]nce a notice of appeal is filed, the district court is divested of jurisdiction over the matters being appealed.” Nat. Res. Def. Council, Inc. v. Sw. Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). However, when it is “clear to the district court” that such a notice is deficient “by reason of untimeliness, lack of essential recitals, or reference to a non-appealable order,” the court “may disregard the purported notice . . . and proceed with the case, knowing that it has not been deprived of jurisdiction.” Ruby v. Sec'y of U.S. Navy, 365 F.2d 385, 389 (9th Cir. 1966). The same is true if an appeal is clearly frivolous, i.e., “so baseless that it does not invoke appellate jurisdiction.” Graven v. Brnovich, No. CV-22-00062-PHX-GMS, 2022 WL 1046385, at *1 (D. Ariz. Apr. 7, 2022) (quoting Dagdagan v. City of Vallejo, 682 F.Supp.2d 1100, 1116 (E.D. Cal. 2010)).
Here, Plaintiff's Notice does not divest this Court of jurisdiction over the instant Motions. For one thing, the Notice does not identify any order from the Court that Plaintiff wishes to appeal. See Notice at 1 (listing “Docket entry number of judgment or order” as “23CV2105” and answering “INTER ALIA” for the “Date of judgment or order”). And “[f]or appellate jurisdiction to lie, there must be some underlying order for the appellate court to review.” Graven, 2022 WL 1046385, at *1. Moreover, even assuming Plaintiff sought to appeal the Court's most recent decision-the dismissal of the EEOC-and that he could presently appeal said decision, his Notice would not impact the Court's ability to adjudicate the Motions to Dismiss. This is because the Motions are not connected to Plaintiff's claims against the EEOC. See Sessa v. Ancestry.com Operations Inc., No. 2:20-CV-02292-GMN-BNW, 2022 WL 18108426, at *2 (D. Nev. Jan. 18, 2022) (“[J]urisdiction is not lost to consider matters unrelated to the interlocutory appeal.”).
Its jurisdiction confirmed-at least as to Plaintiff's Notice-the Court will turn to SEIU's and the County's respective Motions to Dismiss.
SEIU'S MOTION TO DISMISS
SEIU seeks to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction) and 12(b)(6) (failure to state a claim). The Court finds SEIU is entitled to dismissal under both rules.
I. Legal Standards
A. Rule 12(b)(1) - Subject Matter Jurisdiction
Under Rule 12(b)(1), a party may raise by motion the defense that the complaint lacks subject matter jurisdiction via a facial or factual attack. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, such as the one here, “the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A court resolves a facial attack as it would a Rule 12(b)(6) motion: “Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient . . . to invoke the court's jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014).
When a defendant files a Rule 12(b)(1) motion, “there is a presumption of a lack of jurisdiction until the plaintiff affirmatively proves otherwise.” Orient v. Linus Pauling Inst. of Sci. & Med., 936 F.Supp. 704, 706 (D. Ariz. 1996) (citing Stock West, Inc. v. Confederated Tribes of Colville Rsrv., 873 F.2d 1221, 1225 (9th Cir. 1989)). At the same time, courts have a duty to liberally construe a pro se litigant's pleadings. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988).
B. Rule 12(b)(6) - Failure to State a Claim
Rule 12(b)(6) permits a party to raise by motion the defense that the complaint “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original).
To survive a 12(b)(6) motion, then, “a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the facts pled “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged- but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (second alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)).
When reviewing a motion to dismiss under Rule 12(b)(6), the Court applies its “judicial experience and common sense.” Id. (citation omitted). Further, “a district court must accept as true all facts alleged in the complaint” and “draw all reasonable inferences in favor of the plaintiff.” Wi-LAN Inc. v. LG Elecs., Inc., 382 F.Supp.3d 1012, 1020 (S.D. Cal. 2019) (citing Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014)). Where a complaint does not survive 12(b)(6) review, the Court will grant leave to amend unless it determines that no modified contention “consistent with the challenged pleading . . . could cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)).
II. Plaintiff's Factual Allegations Regarding SEIU
Per the Complaint, Plaintiff was previously employed by the County through the Del Mar Thoroughbred Club. Compl. at 11. While so employed, Plaintiff was a member of SEIU's bargaining unit. See id. Plaintiff alleges that, during his employment, he accrued “time service credit” and “hundreds of thousands of dollars” in retirement benefits through the San Diego County Employees Retirement Association (“SDCERA”). See id. at 11-12. Plaintiff alleges SEIU and the County conspired to transfer Plaintiff's retirement benefits to “a private SEIU that was bankrupt” and deprive Plaintiff of “service [c]redit time.” Id.
As both Plaintiff and SEIU note, Plaintiff was a member of SEIU, Local 2028, which later merged with SEIU, Local 221. See Compl. at 11; SEIU's Mot. at 4. It is not clear from the Complaint, however, whether Plaintiff is claiming to have ever become a member of SEIU, Local 221-the party in this action.
III. Analysis
The Court liberally construes the above allegations to raise claims for violations of (1) the duty of fair representation, as recognized by California's Meyers-Milias-Brown Act (“MMBA”) (Cal. Gov't Code §§ 3500-11); and (2) Title VII. Neither survives scrutiny.
A. Duty of Fair Representation
The Complaint mentions the covenant of good faith and fair dealing and fiduciary duties. See Compl. at 11-12. SEIU argues allegations relating to these issues are best understood as claims for breach of the duty of fair representation, which are subject to the exclusive jurisdiction of the California Public Employment Relations Board (“PERB”). See SEIU's Mot. at 8-11. SEIU thus contends these claims must be dismissed for lack of subject matter jurisdiction. See id. The Court agrees.
Generally, a worker cannot bring a fair representation claim against his union to court without first turning to the PERB. The MMBA, which “recognizes the right of public employees to bargain collectively with their employers over wages and other terms of employment,” governs “labor relations between most local public entities and their employees” in California. City of San Jose v. Operating Eng'rs Loc. Union No. 3, 232 P.3d 701, 703 (Cal. 2010). As relevant here, the MMBA grants the PERB “exclusive jurisdiction” to make “initial determination[s]” regarding “charge[s] of unfair practice[s].” Cal. Gov't Code § 3509(b). And California courts treat “a union's violation of its duty of fair representation as an unfair practice under the MMBA.” Paulsen v. Loc. No 856 of Internat. Bhd. of Teamsters, 123 Cal.Rptr.3d 332, 338 (Ct. App. 2011). So, a plaintiff must exhaust her remedies with the PERB before raising her MMBA fair representation claim in court. See Cal. Gov't Code § 3509(b); City of San Jose, 232 P.3d at 703.
A complaint need not use the term “duty of fair representation” to raise claims subject to the MMBA's exhaustion requirements. The PERB's “exclusive initial jurisdiction” applies to activities “arguably protected or prohibited” by the MMBA. Id. at 706 (quoting El Rancho Unified Sch. Dist. v. Nat'l Educ. Ass'n., 663 P.2d 893, 897 (Cal. 1983)). Therefore, “when tort and other claims essentially raise a duty of fair representation claim, the tort and other claims are properly dismissed based on the PERB's exclusive jurisdiction.” Harrell v. City of Gilroy, No. 17-CV-05204-LHK, 2018 WL 3845862, at *10 (N.D. Cal. Aug. 13, 2018) (emphasis added).
Plaintiff cannot bring his fiduciary-duty and good-faith-and-fair-dealing claims without pleading exhaustion. Earnest v. San Joaquin Gen. Hosp., No. 2:16-CV-01064-MCE-CKD, 2017 WL 1179168, at *5 (E.D. Cal. Mar. 30, 2017) (dismissing complaint for “failure to plead exhaustion under the PERB”). Courts have defined California's duty of fair representation to require unions “to refrain from representing their members arbitrarily, discriminatory, or in bad faith.” Paulsen, 123 Cal.Rptr.3d at 337 (quoting Hussey v. Operating Eng'rs Loc. Union No. 3, 42 Cal.Rptr.2d 389, 393 (Ct. App. 1995)). And here, Plaintiff in essence alleges SEIU failed to properly represent him by “conspir[ing]” with the County to deprive him of benefits. See Compl. at 11. The Complaint thus functionally alleges SEIU breached its duty of fair representation.
See Stevenson v. L.A. Unified Sch. Dist., No. CV 09-6497 ODW (PLAX), 2010 WL 11596479, at *3 (C.D. Cal. June 28, 2010) (construing claim for “union violations of fiduciary duties” as alleged “failure to abide by [the] duty of fair representation”); Earnest v. San Joaquin Cnty., No. 2:16-CV-01064-MCE-CKD, 2018 WL 1567810, at *4 (E.D. Cal. Mar. 30, 2018) (finding claim that union conspired with employer and represented plaintiff in bad faith “must be processed as an unfair practice charge by PERB”); Glover v. Cal. State Univ. Fresno, No. 1:15-CV-00152-SAB, 2015 WL 4508714, at *5 (E.D. Cal. July 24, 2015) (holding breach of contract action against union raised, “in essence,” a fair representation claim).
As the Complaint is silent on whether Plaintiff brought his fair representation claims to the PERB, the Court GRANTS SEIU's Motion and DISMISSES WITHOUT PREJUDICE Plaintiff's fair representation claims for lack of subject matter jurisdiction. See, e.g., Harrell, 2018 WL 3845862, at *10; Glover, 2015 WL 4508714, at *5. However, because the Court cannot find that doing so would be futile, the Court will grant Plaintiff leave to amend. If he has brought his fair representation claims before the PERB, he may re-raise this claim in an amended complaint by adequately pleading exhaustion. But if Plaintiff has not already exhausted his fair representation claim, he may either (1) plead facts to support the application of an exception to the exhaustion requirement; or (2) pursue his claims in a future action after exhausting his claims.
As the Court holds that it lacks subject matter jurisdiction over the Complaint's fair representation claims, the Court declines to consider SEIU's statute-of-limitations argument except as necessary here to address the issue of leave to amend. SEIU argues that leave would be futile because Plaintiff's fair representation claims fall outside the MMBA's six-month statute of limitations. SEIU's Mot. at 7. To that end, SEIU interprets the Complaint's allegations to arise from events that took place prior to 2007. See id. That is not, however, the only-or even the most natural-way to read the Complaint. Indeed, upon inspection, the Complaint seems superlatively ambiguous as to the timing of the relevant events. Further, as statutes of limitations are affirmative defenses, dismissal on such grounds is appropriate at this stage “only when ‘the running of the statute is apparent on the face of the complaint.'” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). And, while its lack of detail may render the Complaint defective in certain respects, it does not establish that Plaintiff's claims are time-barred.
B. Title VII
As SEIU notes, one could generously read the Complaint to allege that Plaintiff was discriminated against on the basis of his race in violation of Title VII. See Compl. at 12; SEIU's Mot. at 5. SIEU seeks to dismiss said Title VII claim pursuant to Rule 12(b)(6) for failure to plead (1) exhaustion of remedies; and (2) facts sufficient to state a claim for which relief may be granted. See id. at 11-13.
SEIU contends that, to the extent the Complaint accuses it of wrongfully denying retirement benefits in violation of any other statutory duty, SEIU is the wrong defendant because it has no “authority to grant or deny retirement benefits to County employees.” SEIU's Mot. at 12. Notably, SEIU provides little case law to support the legal assumptions underlying this argument. But in any event, the Court does not interpret the Complaint to levy such allegations at SEIU and thus will not address this issue at this time.
As the Court agrees with both contentions, the Court will decline to consider SEIU's statute-of-limitations defense for the same reasons explained supra in footnote 7. See SEIU's Mot. at 8.
1. Exhaustion of Remedies
As with actions arising from the MMBA, a plaintiff is required to exhaust her administrative remedies before bringing suit under Title VII. See Dornell v. City of San Mateo, 19 F.Supp.3d 900, 905 (N.D. Cal. 2013). At this stage, a litigant need only plead “substantial compliance” with Title VII's exhaustion requirement. See Williams v. Wolf, No. 19-CV-00652-JCS, 2019 WL 6311381, at *6 (N.D. Cal. Nov. 25, 2019).
Unlike the MMBA, Title VII's exhaustion requirement is not jurisdictional. Fort Bend Cnty. v. Davis, 139 S.Ct. 1843, 1851 (2019). That said, the exhaustion requirement remains a “mandatory claimprocessing rule” under Title VII, id., meaning a plaintiff must “plead compliance . . . to state a claim upon which relief may be granted,” Thomas v. Sec'y of the U.S. Dep't of Veterans Affs., No. CV 21-02433 JAK (RAO), 2021 WL 3468937, at *3 n.3 (C.D. Cal. Mar. 25, 2021).
To satisfy this requirement, “the allegations of a plaintiff's judicial complaint must be ‘like or reasonably related to the allegations'” he raised in an administrative charge filed with the EEOC or an eligible state agency. Cloud v. Brennan, 436 F.Supp.3d 1290, 1302 (N.D. Cal. 2020) (quoting Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990)). Allegations are sufficiently related where “they would fall within ‘the scope of an EEOC investigation which [could] reasonably be expected to grow out of the [administrative] charge.'” Id. (alterations in original) (quoting Sosa, 920 F.2d at 1456).
Courts evaluating the similarities between judicial complaints and administrative charges consider several factors, including “the alleged basis of the discrimination, dates of discriminatory acts specified within the [administrative] charge, perpetrators of discrimination named in the charge, and any locations at which discrimination is alleged to have occurred.” B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1100 (9th Cir. 2002). Courts also consider the extent to which the “plaintiff's civil claims . . . are consistent with [his] original theory of the case.” Id. During this analysis, courts construe administrative charges “with utmost liberality.” Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002) (quoting B.K.B., 276 F.3d at 1100).
Plaintiff has not adequately pled exhaustion. He allegedly filed “a formal complaint” with the EEOC in April of 2021 regarding his difficulties in acquiring a mail-in ballot from the County. Compl. at 5. Setting aside whether such a claim could even fall under the auspices of the EEOC and/or Title VII, the foregoing allegations bear no relation to Complaint's claims against SEIU. Nor does the Complaint reference any other administrative charges Plaintiff might have filed. Plaintiff's Title VII claim must thus be dismissed for failure to plead exhaustion. See, e.g., Lyons v. England, 307 F.3d 1092, 1104 (9th Cir. 2002) (“Incidents of discrimination not included in an EEOC charge may not be considered by a federal court unless the new claims are like or reasonably related to the allegations contained in the EEOC charge.” (quoting Green v. L.A. Cnty. Superintendent of Schs., 883 F.2d 1472, 1475-76 (9th Cir. 1989))).
2. Failure to Plead Elements of the Claim
Generally, “in an employment discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against him and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). SEIU argues the Complaint is deficient on both counts. See SEIU's Mot. at 14-16. SEIU is right.
Regarding the first element, the Complaint could be interpreted to allege that SEIU took “adverse action” against Plaintiff by conspiring to prevent him from accessing retirement benefits that he was otherwise entitled to. And notably, the denial of retirement benefits may amount to a qualifying adverse action. See Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (“[A]n adverse employment action is one that ‘materially affect[s] the compensation, terms, conditions, or privileges of . . . employment.'” (alterations in original) (quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1126 (9th Cir. 2000))).
The Complaint does not, however, contain any factual allegations to support the existence of an adverse employment action. Indeed, the Complaint neither alleges SEIU had control over the disbursement of benefits, nor that Plaintiff was actually denied such benefits. The allegation that SEIU “conspired” with the County is a legal conclusion that cannot support the Complaint on its own. Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). Plaintiff has thus not adequately pled that he suffered an adverse employment action.
The Complaint vaguely references only lost “time service credit.” Compl. at 10.
As to the second element, where an employer has allegedly “treated a particular person less favorably than others because of a protected trait,” the plaintiff “must establish that the defendant had a discriminatory intent.” Wood v. City of San Diego, 678 F.3d 1075, 1081 (9th Cir. 2012) (quoting Ricci v. DeStefano, 557 U.S. 557, 577 (2009)). A plaintiff may plead discriminatory intent by alleging facts showing that similarly situated employees outside of the plaintiff's protected class were treated more favorably. See Quinn v. Centerplate, No. 14-CV-01254 NC, 2014 WL 2860666, at *4 (N.D. Cal. June 23, 2014). As the Complaint is devoid of any such allegations, Plaintiff has failed to state a discrimination claim for which relief may be granted.
See Heyer v. Governing Bd. of Mt. Diablo Unified Sch. Dist., 521 Fed.Appx. 599, 601 (9th Cir. 2013) (affirming dismissal where, “[a]part from conclusory statements, [plaintiff] ma[de] no factual assertion . . . that a person of another race was otherwise treated differently than he was”); Daevu v. San Mateo Cnty., No. C 09-0406 JL, 2010 WL 11582920, at *2 (N.D. Cal. May 6, 2010) (“Title VII does not protect employees from ‘unfair' employment actions but only from actions with clear discriminatory intent or from adverse employment actions with discriminatory motives.”).
Consequently, Plaintiff's Title VII claim is DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO AMEND.
THE COUNTY'S MOTION TO DISMISS
The County moves to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(4) (insufficient process) and 12(b)(5) (insufficient service of process). For the reasons below, the Court will GRANT the County's Motion.
I. Legal Standard
“A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with [Federal Rule of Civil Procedure] 4.” Crowley v. Bannister, 734 F.3d 967, 974-75 (9th Cir. 2013) (quoting Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009)).
Rule 12(b)(4) permits defendants to move for dismissal due to insufficient process, and Rule 12(b)(5) authorizes a defendant to move for dismissal due to insufficient service of process. The two rules serve distinct purposes, though they are sometimes confused:
An objection under Rule 12(b)(4) concerns the form of the process rather than the manner or method of its service. Technically, therefore, a [R]ule 12(b)(4) motion is proper only to challenge noncompliance with the provisions of Rule 4(b) or any applicable provision incorporated by Rule 4(b) that deals specifically with the content of the summons. A Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery or lack of delivery of the summons and complaint.El-Aheidab v. Citibank (S.D.), N.A., No. C-11-5359 EMC, 2012 WL 506473, at *2 (N.D. Cal. Feb. 15, 2012) (alteration in original) (quoting 5A Wright & Miller, Fed. Practice and Procedure § 1353 (3d ed. 2011)).
When a defendant challenges service, the plaintiff bears the burden of establishing the validity of service as governed by Rule 4. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). The Ninth Circuit has held that “Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint.” United Food & Com. Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984). Accordingly, “dismissal is generally not justified absent a showing of prejudice.” Id.
II. Relevant Facts
As noted above, Plaintiff filed his Complaint on November 16, 2023. Six days later, Plaintiff filed a copy of the Summons addressed to “County of San Diego,” a Notice of Lawsuit and Request for Waiver of Service of Summons (“Notice”), and various receipts issued by the U.S. Postal Service (“USPS”). See generally ECF No. 5. The receipt naming the County, which is dated November 20, lists a tracking number ending in -1723-11. Id. at 4. On December 18, Plaintiff filed the same Notice, this time accompanied by (1) a Proof of Service form, in which Plaintiff claims to have served the County on December 14 by certified mail; and (2) several new USPS receipts, including one addressed to the County and associated with a tracking number ending in -1724-96. See generally ECF No. 7.
Per the County, the Clerk of the County's Board of Supervisors received a certified mailing from Plaintiff on January 16, 2024. Decl. Lucy Manfre Supp. County's Mot. (“Manfre Decl.”) ¶ 3, ECF No. 23-2. This mailing, the tracking number of which matched the receipt Plaintiff filed on November 20 (ending in -1723-11), contained only copies of the Summons and the Notice. See generally Manfre Decl. Ex. 1. The mailing purportedly did not contain the Complaint, and the County claims it still has not been served with the Complaint. Manfre Decl. ¶ 3. Plaintiff's Opposition to the County's Motion does not appear to address any of these contentions; instead, Plaintiff largely reiterates difficult-to-follow passages from his Complaint.
Plaintiff does contend that, “[b]efore anything goes to the courts,” the County “is supposed to contact [him]” but has not done so. Opp'n to County's Mot. at 1. The Court presumes Plaintiff is referring to Federal Rule of Civil Procedure 5's requirement that written motions be served upon the other parties in the case. See Fed.R.Civ.P. 5(a)(1)(D). However, it appears the County did mail its Motion and the relevant accompanying documents to Plaintiff at the address he has on file with the Court. See ECF No. 23-4; County's Reply at 3; Fed.R.Civ.P. 5(b)(2)(C).
III. Analysis
Per Rule 4(j), a local government “must be served by (A) delivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by that state's law for serving a summons . . . on such a defendant.” Fed.R.Civ.P. (4)(j)(2). The County first argues Plaintiff has not employed the methods of service allowed by these provisions. The County also contends any service Plaintiff attempted was deficient in terms of its content. The Court agrees on both counts.
A. Method of Service
Rule 4(j)(2)(A) does not provide for service by mail. Krasnoperov v. California, No. SACV 18-01474-JVS (KESx), 2019 WL 3311760, at *1 (C.D. Cal. Feb. 15, 2019); see also Bradley v. Bradley, No. CV-22-01435-PHX-SPL, 2023 WL 2574221, at *2 (D. Ariz. Mar. 20, 2023) (“With respect to service under Rule 4(j)(2)(A), courts have interpreted ‘delivering' to exclude service by mail.”).
This leaves Plaintiff with Rule 4(j)(2)(B), which here incorporates California law. The Golden State allows a plaintiff to serve a local government “by delivering a copy of the summons and of the complaint to the clerk, secretary, president, presiding officer, or other head of its governing body.” Cal. Civ. Proc. Code § 416.50(a). Like Rule 4(j)(2), § 416.50 requires personal service and is thus of little use to Plaintiff. Gottschalk v. City & Cnty. of San Francisco, 964 F.Supp.2d 1147, 1165 (N.D. Cal. 2013).
Nor has Plaintiff effected substitute service. An individual identified in § 416.50 may be served by “leaving a copy of the summons and complaint during usual office hours in his or her office . . . with the person who is apparently in charge thereof” and “thereafter mailing a copy of [the documents] by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.” Cal. Civ. Proc. Code § 415.20(a). But here, there is no indication Plaintiff left a copy of the Summons and Complaint with the office of the Clerk of the County's Board of Supervisors. See Fidelman v. Polis, No. 23-CV-417 TWR (NLS), 2023 WL 4440299, at *1 (S.D. Cal. July 7, 2023). And, simply put, “[s]ervice by mail alone is insufficient under California law.” Krasnoperov, 2019 WL 3311760, at *2.
B. Content of Service
Finally, the County correctly points out that Rule 4 and California Code of Civil Procedure §§ 416.50 and 415.20 all require the delivery of the summons and the complaint. County's Mem. at 5. The County, by way of a signed affidavit, declares Plaintiff's mailing did not include a copy of the Complaint, see Manfre Decl. ¶ 3, and nothing in the record nor Plaintiff's Opposition to the County's Motion contradicts this assertion. Although courts “construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.” Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). And Rule 4 is crystal clear: “[a] summons must be served with a copy of the complaint.” Fed.R.Civ.P. 4(c)(1). Plaintiff has thus failed to establish sufficient service of process. See, e.g., Rangel v. Gile, No. 5:17-CV-01267-VBF (SHK), 2020 WL 5134760, at *11 (C.D. Cal. May 12, 2020) (concluding content of service insufficient where plaintiff “ha[d] failed to comply with the requirements of Rule 4(c) to serve a complaint and summons”), report and recommendation adopted, 2020 WL 5111210 (C.D. Cal. Aug. 28, 2020).
IV. Next Steps
While Plaintiff's service has proven insufficient, the Court has discretion to quash service rather than dismiss this action. S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006). “Because there is no reason to believe that Plaintiff could not properly effect service upon [the County], the Court declines to dismiss the action and instead quashes the service of process.” Kenney v. City of San Diego, No. 13CV248 WQH (JLB), 2016 WL 4479401, at *2 (S.D. Cal. Aug. 24, 2016).
The County argues that because any renewed attempt at service could not be completed within Rule 4(m)'s ninety-day window, dismissal is appropriate. County's Mem. at 6. But the Court may also exercise its discretion to grant an extension of time whether the plaintiff establishes good cause-as provided for by the exception in Rule 4(m)-or not. See Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007). The Court will do so here given Plaintiff's pro se status, the fact that the County has received actual notice of this action as evidenced by the instant Motion, and the absence of any indication of potential prejudice to the County. See, e.g., Gonzalez v. Cal. Highway Patrol, No. 1:20-CV-01422-DAD-JLT, 2021 WL 3287717, at *8 (E.D. Cal. Aug. 2, 2021).
CONCLUSION
Given the foregoing, the Court GRANTS SEIU's Motion (ECF No. 16) and DISMISSES the Complaint as to SEIU WITHOUT PREJUDICE. The Court also GRANTS the County's Motion (ECF No. 23) and QUASHES Plaintiff's prior service as to the County. In light of these rulings, Plaintiff MAY FILE an amended complaint within twenty-eight (28) days of the date of this Order.
If Plaintiff elects to file an amended complaint, he SHALL SERVE the amended complaint on the County in accordance with Rule 4 and FILE proof of service with the Court within twenty-one (21) days of filing the amended complaint. Plaintiff is advised that any amended complaint must cure the deficiencies noted above and be complete in itself without reference to the original Complaint. See S.D. Cal. CivLR 15.1. Any claim not realleged in Plaintiff's amended complaint may be considered waived. See Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012). Any amended complaint should thus include all claims Plaintiff wishes to raise as to both SEIU and the County. Failing to file a timely amended complaint may result in the dismissal of this action as to SEIU. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005).
SEIU waived service of process on December 28, 2023. SEIU's Mot. at 4. Rule 4 was satisfied by this waiver. See Lustig v. AzGen Sci. Holdings PLC, No. 18-CV-07503-HSG, 2020 WL 2614778, at *5 (N.D. Cal. May 21, 2020). Plaintiff can thus serve any amended Complaint on SEIU in accordance with Rule 5. See Emp. Painters' Tr. v. Ethan Enterprises, Inc., 480 F.3d 993, 995-96 (9th Cir. 2007) (“[A]n amended complaint can often be served in the same manner as any other pleading [under Rule 5] if the original complaint is properly served and the defendants appeared in the first instance.”). “Service under Rule 5 is made on the attorney of a represented party and can be accomplished by ‘filing [the paper] with the court's electronic-filing system.'” Hernandez v. Williams, No. 21-CV-944-WQH-KSC, 2022 WL 2706155, at *1 (S.D. Cal. July 12, 2022) (alteration in original) (quoting Fed.R.Civ.P. 5(b)).
If Plaintiff decides not to file an amended complaint, he SHALL SERVE the original Complaint on the County as required by Rule 4 within twenty-eight (28) days of the date of this Order. If Plaintiff selects this option, the Court will issue an order dismissing SEIU as a defendant, and this case will proceed solely with the Complaint's allegations against the County. Plaintiff should note that, if he opts not to file an amended complaint, failing to serve the County in accordance with this Order may result in the dismissal of this action for want of prosecution.
IT IS SO ORDERED.