Williams v. United States Small Bus. Admin.

TANIKA WILLIAMS, Plaintiff, v. UNITED STATES SMALL BUSINESS ADMINISTRATION, et al., Defendants.

No. 1:23-cv-00159-JLT-SAB

United States District Court, E.D. California

February 22, 2023

FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANTS' MOTION TO DISMISS AND RECOMMENDING DISMISSING THIS ACTION WITHOUT PREJUDICE AND WITHOUT LEAVE TO AMEND

(ECF NOS. 1, 3)

OBJECTIONS DUE WITHIN FOURTEEN DAYS

BACKGROUND

On October 27, 2022, Plaintiff Tanika Williams filed a complaint against Defendants United States Small Business Administration (“SBA”), and Isabel Guzman Administrator of the SBA (collectively “Defendants”), in the Superior Court of California, County of Madera, Case No. MCV087934. (ECF No 1-1 at 2.) On February 1, 2023, the action was removed to the United States District Court for the Eastern District of California. (ECF No. 1.) Currently before the Court is Defendants' motion to dismiss this action brought pursuant to Federal Rules of Civil Procedure 12(b)(4) 12(b)(5), and 12(b)(6), filed on February 3, 2023. (ECF No. 3.) On February 17, 2023, the District Judge referred the motion to the assigned Magistrate Judge for the preparation of findings and recommendations. (ECF No. 4.)

Plaintiff filed no opposition to the motion to dismiss. The Court, having reviewed the moving papers, the declaration attached thereto, the lack of an opposition from the Plaintiff, and the Court's record, finds this matter suitable for decision without further briefing or oral argument. See Local Rule 230(c), (g). Accordingly, no hearing will be set on the referred motion before the assigned Magistrate Judge. For the reasons explained herein, the Court recommends Defendants' motion to dismiss be granted.

II.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(4), a party may file a motion to dismiss on the ground of insufficient process, and under Rule 12(b)(5), for insufficient service of process. Fed.R.Civ.P. 12(b)(4)-(5). “A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under” Federal Rule of Civil Procedure 4. Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (citing Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982)). “Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint.” Direct Mail, 840 F.2d at 688 (quoting United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984)). However, “without substantial compliance with Rule 4, ‘neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction.' ” Direct Mail, 840 F.2d at 688 (quoting Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986)). “Once service is challenged, plaintiffs bear the burden of establishing that service was valid under Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004) (citations omitted). “[A] signed return of service constitutes prima facie evidence of valid service which can be overcome only by strong and convincing evidence.” SEC v. Internet Solutions for Bus., Inc., 509 F.3d 1161, 1163 (9th Cir. 2007). “The court may weigh and determine disputed issues of fact on a Rule 12(b)(5) motion.” Cranford v. United States, 359 F.Supp.2d 981, 984 (E.D. Cal. 2005)

Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In deciding a motion to dismiss, “[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The pleading standard under Rule 8 of the Federal Rules of Civil Procedure does not require “ ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In assessing the sufficiency of a complaint, all well-pleaded factual allegations must be accepted as true. Iqbal, 556 U.S. at 678-79. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. To avoid a dismissal under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

In deciding whether a complaint states a claim, the Ninth Circuit has found that two principles apply. First, to be entitled to the presumption of truth the allegations in the 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). Second, so that it is not unfair to require the defendant to be subjected to the expenses associated with discovery and continued litigation, the factual allegations of the complaint, which are taken as true, must plausibly suggest an entitlement to relief. Starr, 652 F.3d at 1216. “Dismissal is proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Navarro, 250 F.3d at 732 (citing Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988)).

III.

DISCUSSION

The Court first discusses preliminary considerations regarding the pro se status of the Plaintiff and the fact no opposition was filed.

A. Pro Se Plaintiff and No Filed Opposition

Plaintiff is proceeding pro se. The Court is required to construe the filings of a pro se party liberally, and accept as true all factual allegations contained in the complaint. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010); Erickson v. Pardus, 551 U.S. 89, 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678. Plaintiff is not incarcerated. Because an “inmate's choice of self-representation is less than voluntary . . . [and] coupled with the further obstacles placed in a prisoner's path by his incarceration,” pro se inmates are given greater leeway than non-incarcerated pro se litigants. Thomas, 611 F.3d at 1150 (quoting Jacobsen v. Filler, 790 F.2d 1362, 1365 n.4 (9th Cir.1986)).

Plaintiff did not file an opposition to the motion to dismiss and the deadline to do so has expired. L.R. 230(c). “No party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party.” L.R. 230(c) (citing L.R. 135). “A failure to file a timely opposition may also be construed by the Court as a non-opposition to the motion.” L.R. 230(c). The Court declines to construe the failure to timely file an opposition as a non-opposition to the motion. However, the Court finds oral argument or attempting to obtain briefing from the non-responding Plaintiff to be unnecessary for the Court to make proper findings and recommendations herein. See Local Rule 230(c), (g). Defendants' arguments remain unopposed, and a pro se party is not relieved from the obligations imposed on all parties appearing before the Court, despite the liberal eye toward their filings. See Maxson v. Mosaic Sales Sols. U.S. Operating Co., LLC, No. 2:14-CV-02116-APG, 2015 WL 4661981, at *2 (D. Nev. July 29, 2015) (“While the Court liberally construes the filings of pro se litigants . . . pro se litigants are not relieved from following applicable rules of procedure.”) (citations omitted); Arunachalam v. Davila, No. 3:18-CV-02488-JD, 2018 WL 10245911, at *1 (N.D. Cal. May 17, 2018) (“Plaintiff's pro se status does not relieve her of conformity to the pleading rules.”).

The Court shall proceed to liberally construe the allegations in the complaint and afford the Plaintiff the benefit of the doubt when analyzing the Defendants' arguments. See Citizens of Idaho v. Idaho, No. 1:11-CV-620-ELJ-LMB, 2012 WL 3905235, at *4 (D. Idaho Aug. 15, 2012) (“A court is under special obligations when considering motions to dismiss a complaint filed by a plaintiff without legal representation . . . [and] the Court's obligation is, ‘where the petitioner is pro se ... to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.' ”) (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.2010)).

B. Motion to Dismiss for Insufficient Process and Service of Process

Defendants move to dismiss arguing Plaintiff has not properly served the Defendants, as Plaintiff has not served the U.S. Attorney's Office or the Attorney General.

To serve the United States, a party must serve: (1) the U.S. Attorney's Office by delivering a copy of the summons and complaint to the U.S. Attorney or by sending a copy of each by registered or certified mail to the U.S. Attorney's civil process clerk; and (2) the U.S. Attorney General by registered or certified mail. Fed.R.Civ.P. 4(i)(1)(A)(i)-(ii). “To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.” Fed.R.Civ.P. 4(i)(2).

While Defendants cite to Cranford, 359 F.Supp.2d at 984 Defendants do not address the Borzeka factors discussed therein. As stated therein, ...