Dipito LLC v. Manheim Riverside
- Proceeding
- district
- Area
- civil
- Panel
- Marilyn L. Huff (author)
Analysis
The court considered Defendant Center Automotive, Inc.'s motion to dismiss for insufficient service of process, noting that Plaintiffs failed to oppose the motion or correct service within the time allowed. The court granted the motion, quashed service of process on Center, and ordered Plaintiff Dipito LLC to perfect service within thirty days.
| What the court decided | The model |
|---|---|
Granting Defendant Center Automotive, Inc.'s motion to dismiss for insufficient service of process“Based on the foregoing, including the declaration provided by Mr. Farguson, the Court grants Center’s motion to dismiss for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5).” | agree with court The court relied on a declaration from the defendant's registered agent stating he was not present when service was purportedly made on a 'John Doe,' and the plaintiffs' failure to oppose the motion or correct service. Under Rule 12(b)(5), a court may quash service if it was not made in accordance with Rule 4. The record supports the finding that service was defective because the registered agent was not present and the plaintiffs did not rebut this. |
Quashing service of process on Defendant Center Automotive, Inc.“In its discretion, the Court quashes service of process of Center (Doc. No. 13-1).” | agree with court The court exercised its discretion to quash service rather than dismiss the action entirely, citing the principle that if effective service can be made and there is no prejudice, quashing is the appropriate remedy. This is a standard discretionary remedy for insufficient service. |
Ordering Plaintiff Dipito LLC to perfect service of process on Center within thirty days“Plaintiff Dipito must perfect service of process on Center no later than thirty days (30) from the date this Order is filed.” | agree with court The court set a deadline for the plaintiff to cure the defect in service. This is a common procedural order to allow the plaintiff an opportunity to serve the defendant properly before facing dismissal of the claims against that defendant. |
The order itself: sound — The order correctly applies the standard for insufficient service of process under Rule 12(b)(5). It relies on the defendant's declaration that the registered agent was not present and the plaintiff's failure to oppose or correct service. The court appropriately exercises its discretion to quash service rather than dismiss the case, citing binding Ninth Circuit authority (S.J. v. Issaquah) and persuasive district court authority. The reasoning is sound and directly addresses the motion.
Opinion
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7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9
10 DIPITO LLC, a Montana Limited Case No.: 3:21-cv-01205-H-JLB 11 Liability Company d/b/a San Diego Motorwerks; CHIDIEBERE AMADI, an ORDER GRANTING DEFENDANT 12 individual, CENTER AUTOMOTIVE, INC.’S 13 MOTION TO DISMISS FOR Plaintiffs, INSUFFICIENT SERVICE OF 14 v. PROCESS 15 JERRY SIDERMAN, an individual; [Doc No. 68] 16 BMW FINANCIAL SERVICES NA, LLC; CENTER AUTOMOTIVE, LLC, 17 d/b/a Center BMW; and DOES 1 through 18 200, inclusive, 19 Defendants. 20 21 22 On September 9, 2022, Defendant Center Automotive, Inc. (“Center”) filed a motion 23 to dismiss for insufficient service of process. (Doc. No. 68.) On October 6, 2022, the 24 Court issued an order regarding the motion. (Doc. No. 71.) In the Order, the Court stated 25 that it was inclined to grant the motion1 and noted that Plaintiffs Dipito LLC (“Dipito”) 26 27 1 The Court stated it was inclined to grant the motion based on Mr. Farguson’s 28 1 and Chidiebere Amadi (“Amadi”) had failed to file an opposition to the motion to dismiss 2 within the time limits prescribed under Civil Local Rule 7.1(e)(2). (Id.) The Court granted 3 Plaintiffs an additional two weeks to file an opposition, or, if they did not wish to oppose 4 the motion, granted them thirty days to correct service of process on Center. (Id.) Plaintiffs 5 neither filed an opposition nor corrected service of process within the time periods 6 proscribed by the order. 7 On November 14, 2022, the Court held a hearing on the motion. Michael Alfred 8 appeared for Plaintiffs Dipito and Amadi, Katherine Yang appeared for Defendant Center, 9 and Rebecca Caley appeared for Defendant BMW. At the hearing, Plaintiffs’ counsel 10 acknowledged that they had not filed an opposition and had not yet corrected service of 11 process on Center. 12 Based on the foregoing, including the declaration provided by Mr. Farguson, the 13 Court grants Center’s motion to dismiss for insufficient service of process under Federal 14 Rule of Civil Procedure 12(b)(5). See Gonzalez v. DDR Partners, Inc., No. C-08-03814- 15 JW, 2009 WL 10695747, at *2 (N.D. Cal. Jan. 14, 2009) (granting a motion to quash 16 service for insufficient service of process based on two declarations submitted by the 17 defendant and plaintiffs’ non-opposition). In its discretion, the Court quashes service of 18 process of Center (Doc. No. 13-1). See S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 19 1293 (9th Cir. 2006) (holding that a district court “has discretion to dismiss an action or to 20 quash service” where service of process is insufficient) (citation omitted); see also 21 Schagene v. Grumman, No. 11-CV-1642-AJB, 2012 WL 216531, at *2 (S.D. Cal. Jan. 24, 22 23 provided a declaration stating that it sold its dealership at 5201 Van Nuys Blvd., Sherman 24 Oaks, CA 91401 on May 27, 2021 and it no longer owned or operated the dealership 25 following the sale. (Doc. No. 68-2.) The declaration also provided that Mr. Farguson, the registered agent for service of process for Center Automotive, Inc., was not present at the 26 dealership on August 8, 2021 when a “John Doe” accepted service. (Id.) Additionally, 27 Civil Local Rule 7.1.f.3.c. states “[i]f an opposing party fails to file [an opposition] in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the 28 1 2012) ‘However, if it appears that effective service can be made and there has been no 2 prejudice to the defendant, a court will quash service rather than dismiss the action.’’) 3 ||(citation omitted). Plaintiff Dipito” must perfect service of process on Center no later than 4 || thirty days (30) from the date this Order is filed. 5 IT IS SO ORDERED. 6 || DATED: November 16, 2022 7 MAALAYV\ Le FELL ff MARILYNU. HUFF, Seniot/i}trict Judge 8 UNITED STATES DISTRICT COURT 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 || 27 Plaintiffs’ counsel stated at the hearing that Plaintiff Chidiebere Amadi no longer 28 wished to proceed with his claims against Defendants. In a separate order, the Court dismissed Plaintiff Chidiebere Amadi’s claims.