Hernandez v. Jefferson Cnty. Sheriff's Office

EDWARD HERNANDEZ, Plaintiff, v. JEFFERSON COUNTY SHERIFF'S OFFICE, et al., Defendants.

Case No. 3:19-cv-1404-JR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

June 23, 2020

OPINION AND ORDER

Michael H. Simon, District Judge.

United States Magistrate Judge Jolie A. Russo issued Findings and Recommendation in this case on May 6, 2020. ECF 51. Judge Russo recommended that the motions to dismiss filed by Defendants Robert Marrazzo ("Marrazzo"), Barry Davidson ("Davidson"), and the Oregon State Police Department ("OSP") be granted, and claims asserted against them dismissed, some without leave to amend. Plaintiff objects to all the findings and recommendations and requests a de novo review by this Court. After considering de novo the Findings and Recommendation, the objections, the responses, and the underlying briefing filed before Judge Russo, for the reasons discussed below, the Findings and Recommendation is adopted in part, and the motions to dismiss are granted in part.

STANDARDS

A. Review of a Findings and Recommendation

Under the Federal Magistrates Act ("Act"), the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate judge's findings and recommendations, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; Fed. R. Civ. P. 72(b)(3).

For those portions of a magistrate judge's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) ("There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed."); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate judge's findings and recommendations if objection is made, "but not otherwise"). Although in the absence of objections no review is required, the Act "does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that "[w]hen no timely objection is filed," the Court review the magistrate judge's recommendations for "clear error on the face of the record."

B. Rule 12(b)(5) Service of Process

Rule 12(b)(5) of the Federal Rules of Civil Procedure provides for a motion to dismiss for "insufficient process." The sufficiency of process is governed by Rule 4 of the Federal Rules of Civil Procedure. Rule 4(m) requires that a defendant be served within 90 days or a court "must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Rule 4(e) explains how to serve an individual within the United States, andincludes that following state law within the jurisdiction where service is made or the action is filed constitutes sufficient service.

Under Oregon law, service may be made by:

personal service of true copies of the summons and the complaint upon defendant or an agent of defendant authorized to receive process; substituted service by leaving true copies of the summons and the complaint at a person's dwelling house or usual place of abode; office service by leaving true copies of the summons and the complaint with a person who is apparently in charge of an office; service by mail; or service by publication.

Or. R. Civ. P. 7D(1).

Substituted service is further defined as:

Substituted service may be made by delivering true copies of the summons and the complaint at the dwelling house or usual place of abode of the person to be served to any person 14 years of age or older residing in the dwelling house or usual place of abode of the person to be served. Where substituted service is used, the plaintiff, as soon as reasonably possible, shall cause to be mailed by first class mail true copies of the summons and the complaint to the defendant at defendant's dwelling house or usual place of abode, together with a statement of the date, time, and place at which substituted service was made. For the purpose of computing any period of time prescribed or allowed by these rules or by statute, substituted service shall be complete upon the mailing.

Or. R. Civ. P. 7D(2)(b).

Service by mail is further defined as:

When service by mail is required or allowed by this rule or by statute, except as otherwise permitted, service by mail shall be made by mailing true copies of the summons and the complaint to the defendant by first class mail and by any of the following: certified, registered, or express mail with return receipt requested. For purposes of this paragraph, "first class mail" does not include certified, registered, or express mail, return receipt requested, or any other form of mail that may delay or hinder actual delivery of mail to the addressee.

Or. R. Civ. P. 7D(2)(d)(i). Service by mail is considered complete "on the day the defendant, or other person authorized by appointment or law, signs a receipt for the mailing, or 3 days after the mailing if mailed to an address within the state, or 7 days after the mailing if mailed to an address outside the state, whichever first occurs." Id. 7D(2)(d)(ii).

When a defendant challenges service, the plaintiff bears the burden of establishing the validity of service as governed by Rule 4 of the Federal Rules of Civil Procedure. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). There are "two avenues for relief" under Rule 4(m). Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). "The first is mandatory: the district court must extend time for service upon a showing of good cause. The second is discretionary: if good cause is not established, the district court may extend time for service upon a showing of excusable neglect." Id. (citations and footnotes omitted); see also Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007) ("Rule 4(m), as amended in 1993, requires a district court to grant an extension of time when the plaintiff shows good cause for the delay. Additionally, the rule permits the district court to grant an extension even in the absence of good cause." (emphasis in original) (citation omitted)).

The Ninth Circuit has stated that excusable neglect may suffice to show good cause. See, e.g., Lemoge, 587 F.3d at 1198 n.3. A plaintiff, however, also may "be required to show the following [additional] factors to bring the excuse to the level of good cause: '(a) the party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.'" Id. (quoting Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991)); see also In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). Further, a defendant's evasion of service may constitute good cause. See Wei v. State of Hawaii, 763 F.2d 370, 371-72 (9th Cir. 1985) (per curiam). Inconsidering excusable neglect for discretionary extensions, a district court may consider factors "like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service." Efaw, 473 F.3d at 1040.

"Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint." Whidbee v. Pierce County, 857 F.3d 1019, 1023 (9th Cir. 2017) (quoting Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988)). "However, 'neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction without substantial compliance with Rule 4.'" Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (citing Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (citation and quotes omitted)).

C. Rule 12(b)(6) Failure to State a Claim

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The court must draw all reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir.2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to "plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr, 652 F.3d at 1216. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Cor...