Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NEGIN NASIRI KENARI, Case No.: 25cv01981-LL-JLB 12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS FIRST AMENDED COMPLAINT 14 JACOB CONRAD, 15 Defendant. [ECF No. 10] 16 17 18 19 Before the Court is Defendant Jacob Conrad’s Motion to Dismiss pro se Plaintiff 20 Negin Kenari’s (“Plaintiff”) First Amended Complaint (“FAC”) pursuant to Rule 12(b)(5) 21 and 12(b)(6) (the “Motion”). ECF No. 10. This matter is fully briefed, and the Court deems 22 it suitable for determination on the papers and without oral argument pursuant to Civil 23 Local Rule 7.1. For the reasons below, the Court GRANTS Defendant’s Motion to Dismiss 24 the FAC without prejudice. 25 I. BACKGROUND 26 Plaintiff, proceeding pro se, filed her FAC on September 3, 2025, alleging First, 27 Fourth, and Fifth Amendment claims. ECF No. 7. On September 12, 2025, Plaintiff filed a 28 certificate of service showing a printout of USPS tracking pages with deliveries made to 1 San Diego, California; Saint Johns, Florida; and Washington D.C. on September 4, 6, and 2 8, 2025, respectively. ECF No. 9. On September 22, 2025, Defendant moved to dismiss all 3 of Plaintiff’s claims based on insufficient service of process and a failure to state a claim. 4 Mot. at 3. 5 II. DISCUSSION 6 A. Motion to Dismiss for Insufficient Process under Federal Rule of Civil 7 Procedure 12(b)(5) 8 1. Applicable Legal Standard 9 “Before a federal court may exercise personal jurisdiction over a defendant, the 10 procedural requirement of service of summons must be satisfied.” Omni Cap. Int’l, Ltd. v. 11 Rudolf Wolff & Co., 484 U.S. 97, 104 (1987); see also Murphy Bros. v. Michetti Pipe 12 Stringing, Inc., 526 U.S. 344, 350 (1999) (“In the absence of service of process (or waiver 13 of service by the defendant), a court ordinarily may not exercise power over a party the 14 complaint names as defendant.”). “Once service is challenged, plaintiffs bear the burden 15 of establishing that service was valid under Rule 4.” Brockmeyer v. May, 383 F.3d 798, 16 801 (9th Cir. 2004). 17 2. Plaintiff Did Not Properly Serve Defendant 18 Federal Rule of Civil Procedure 4(e) (“Rule 4(e)”) governs service of individuals 19 within the United States. Fed. R. Civ. P. 4(e). Pursuant to Rule 4(e), service may be 20 effectuated by “following state law for servicing a summons in an action brought in courts 21 of general jurisdiction in the state where the district court is located or where service is 22 made.” Id. “California law permits five basic methods of service: (1) personal delivery; (2) 23 delivery to someone else at the party’s usual residence or place of business with mailing 24 (known as ‘substitute service’); (3) service by mail with acknowledgment of receipt; (4) 25 service on persons outside the state by certified or registered mail with a return receipt 26 requested; and (5) service by publication.” Creative Intellects v. Haygood, No. 2:21-CV- 27 02670-RGK-AFM, 2021 WL 3568237, at *2 (C.D. Cal. July 23, 2021) (citing Cal. Civ. 28 Proc. Code §§ 415.10, 415.20, 415.30, 415.40, 415.50). 1 Here, Plaintiff submitted as a certificate of service a printout of USPS tracking pages 2 with deliveries made to San Diego, California; Saint Johns, Florida; and Washington D.C. 3 ECF No. 9. While service by mail is allowed under California law, Plaintiff did not submit 4 any acknowledgement of receipt as proof of service. 5 In her opposition, Plaintiff also alleges that the “service was effected at that address 6 by leaving the summons and complaint with a responsible adult of suitable age” (opp’n at 7 1), but again she has not provided any evidence that such delivery was made. Aside from 8 her conclusory statement that she “demonstrated diligent and reasonable efforts . . . ,” the 9 Court is not aware of such efforts. 10 Therefore, Defendant’s Motion is GRANTED as to Rule 12(b)(5). 11 B. Motion to Dismiss for Failure to State a Claim under Federal Rule of Civil 12 Procedure 12(b)(6) 13 1. Applicable Legal Standard 14 On a motion to dismiss under Rule 12(b)(6), dismissal is appropriate when the 15 complaint does not give the defendant fair notice of a legally cognizable claim and the 16 grounds on which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To 17 survive a Rule 12(b)(6) motion, a plaintiff only needs to plead “enough facts to state a 18 claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 19 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the 20 plaintiff pleads factual content that allows the court to draw the reasonable inference that 21 the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Nevertheless, 22 courts do not “accept as true allegations that are merely conclusory, unwarranted 23 deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 24 1049, 1055 (9th Cir. 2008) (quotation omitted). This standard is ultimately a “liberal” one, 25 especially when the action has been filed “pro se.” See Estelle v. Gamble, 429 U.S. 97, 26 106-07 (1976). Still, even under a “liberal interpretation,” courts “may not supply elements 27 of the claim that were not initially pled.” See Ivey v. Bd. of Regents of the Univ. of Alaska, 28 673 F.2d 266, 268 (9th Cir. 1982). 1 2. Plaintiff Did Not Allege Sufficient Facts to State a Claim 2 Plaintiff’s pleading fails to adequately meet the required pleading standards pursuant 3 to Rule 8(a). The FAC is comprised of broad assertions with little factual support. This 4 Court cannot plausibly draw any reasonable inference as to what misconduct the defendant 5 is liable for. For example, Plaintiff alleges violations of First, Fourth, and Fifth 6 Amendments but do not explain how Defendant was “acting under color of federal 7 authority” or describe what actions constituted “unreasonable searches, seizures, and 8 government surveillance.” ECF No. 7 at 5. 9 In her opposition, Plaintiff argues that the FAC “alleges concrete facts” and refer to 10 statements that are not in the FAC. Opp’n at 2. For example, Plaintiff alleges that 11 “Defendant, while serving as a Navy dentist, participated in surveillance and harassment 12 directed toward Plaintiff beginning in 2018.” Opp’n at 2. However, nowhere in the FAC 13 does it state that Defendant was a Navy dentist or any events that occurred in 2018. See 14 generally FAC. 15 Therefore, Defendant’s Motion is GRANTED as to Rule 12(b)(6). 16 C. Leave to Amend 17 Where a motion to dismiss is granted, a district court must decide whether to grant 18 leave to amend. Generally, the Ninth Circuit has a liberal policy favoring amendments and, 19 thus, leave to amend should be freely granted. See, e.g., DeSoto v. Yellow Freight Systems, 20 Inc., 957 F.2d 655, 658 (9th Cir. 1992). Moreover, courts are not to 21 “dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the 22 deficiencies of the complaint could not be cured by amendment.’” Akhtar v. Mesa, 698 23 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th 24 Cir. 1988). Therefore, this Court will grant Plaintiff leave to amend her FAC. 25 / / / 26 / / / 27 / / / 28 I Hl. CONCLUSION 2 Accordingly, the Court GRANTS Defendants' Motion to Dismiss with leave to 3 ||amend. Any amended complaint and summons shall be filed and served within 14 days and 4 || must address the deficiencies explained herein. Failure to timely and properly file and serve 5 || may result in dismissal of the action. 6 IT IS SO ORDERED. 7 ||Dated: May 5, 2026 NO 9 Honorable Linda Lopez 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 ee