Weimer v. Sheriff Department City Spokane WA

FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Aug 11, 2023 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON ANDY ACE WEIMER, NO. 2:23-CV-0045-TOR 8 Plaintiff, SECOND ORDER GRANTING 9 v. MOTION TO DISMISS SHERIFF DEPARTMENT CITY SPOKANE WA; BADGE #592051 STOLZ, 12 Defendants.

13 BEFORE THE COURT is Defendants’ Motion to Dismiss Per FRCP 12(b)(2), (5), and (7). ECF No. 6.

15 The Court reopened this matter when it came to its attention that the Clerk’s Office committed a docketing error and Plaintiff was not receiving pleadings that were filed in this matter. On July 14, 2023, the Court reopened the case and had the Clerk’s Office send Plaintiff the relevant pleadings and set a deadline to respond to the Motion to Dismiss by August 15, 2023. ECF No. 16. Plaintiff responded on August 7, 2023. ECF No. 17. Defendants filed a Reply on August 10, 2023. With the briefing complete, this issue is therefore ripe for review.

3 Defendants move to dismiss the Complaint for improper service and an improper party. ECF No. 6. Plaintiff’s response does not show otherwise.

5 A court has jurisdiction over a defendant only where a defendant is properly served under Federal Rule of Civil Procedure 4. Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). A defendant may challenge the service of process made by a plaintiff. Fed. R. Civ. P. 12(b)(5).

9 Once challenged, the plaintiff has the burden to establish that service of process was valid under Rule 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004).

11 While liberally construed, a plaintiff must demonstrate substantial compliance with Rule 4. Direct Mail Specialists, 840 F.2d at 688.

13 As relevant here, a person may be served by either “following state law for serving a summons in an action brought in courts of general jurisdiction … [or] delivering a copy of the summons and of the complaint to the individual personally … or delivering a copy of each to an agent authorized or by law to receive service of process.” Fed. R. Civ. P. 4(e). A local government entity may be served by either “delivering a copy of the summons and of the complaint to its chief executive officer” or “serving a copy of each in the manner prescribed by that state’s law for serving a summons or like process on such a defendant.” Fed. R. Civ. P. 4(j).

3 First, there is no evidence Plaintiff substantially complied in properly serving the “Spokane Sheriff Department City Spokane WA”, presumably the Spokane County Sheriff’s Department. Fed. R. Civ. P. 4(j); RCW 4.28.080(2). In any event, Spokane County is the proper party as the legal entity to be sued, not the Spokane Sheriff Department City of Spokane WA. Fed. R. Civ. P. 12(b)(7); RCW 36.01.010. Therefore, the Court dismisses the action against the “Sheriff’s Department City Spokane WA” with prejudice as it is the wrong party and was not properly served.

11 Second, Plaintiff contends he served “Badge # 592051 Stolz” by leaving a copy at the prosecutor’s front desk. ECF No. 17 at 1, ¶ 3. Plaintiff’s admission shows that he did not properly serve Deputy Stolz. In any event, Deputy Stolz declaration states that he has never been served a copy of the Complaint and summons for this case. See ECF No. 8.

16 Therefore, the Court dismisses the action against Deputy Stolz without prejudice.

18 ACCORDINGLY, IT IS HEREBY ORDERED: 19 1. Defendants’ Motion to Dismiss Per FRCP 12(b)(2), (5), and (7) (ECF 20 No. 6) is GRANTED.

1 2. Plaintiff's Complaint against Defendant Sheriff Department City 2 Spokane WA is DISMISSED with prejudice.

3 3. Plaintiff's Complaint against Defendant Stolz Badge #592051 is 4 DISMISSED without prejudice.

5 The District Court Executive is directed to enter this Order and another 6|| Judgment, furnish copies to to the parties, and CLOSE the file.

7 DATED August 11, 2023. ets 0. Kies 9 Oe Ke THOMAS O. RICE <> United States District Judge