1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KIM MIMS, Case No. 2:24-cv-1515-JDP (SS) 12 Plaintiff, 13 v. ORDER 14 CAROLYN COLVIN, Commissioner of Social Security, 15 Defendant. 16

17 18 On May 28, 2024, the Commissioner of Social Security removed this action from 19 Sacramento County Superior Court. ECF No. 1. As a basis for the complaint, plaintiff Kim 20 Mims seeks judicial review of a final decision, issued by the Commissioner of Social Security 21 Administration (“SSA”), denying her application for Social Security Disability Insurance 22 benefits. Id. Defendant moves to dismiss for lack of service pursuant to Federal Rules of Civil 23 Procedure 12(b)(4) and 12(b)(5)—or, in the alternative, to quash service. ECF No. 4. For the 24 foregoing reasons, defendant’s motion to dismiss is denied, but the motion to quash service is 25 granted. Plaintiff has filed an application to proceed in forma pauperis. ECF No. 8. Because her 26 application makes the required showing, her application is granted, and the court will direct 27 service. 28 1 Background 2 On April 22, 2024, plaintiff filed her complaint against the Commissioner of Social 3 Security seeking judicial review of the denial of her Social Security benefits pursuant to 42 4 U.S.C. § 405(g) in the Sacramento County Superior Court. ECF No. 1-1 at 3. The United States 5 Attorney’s Office for the Eastern District of California received a copy of the complaint and a 6 state court proof of summons via certified mail. The mail did not contain include a summons, 7 however. ECF No. 1 at 2. The mail was sent from plaintiff and was addressed to the “United 8 States Attorney’s Office c/o U.S. Attorney, Phillip A. Talbert.” ECF No. 1-1 at 2. 9 Legal Standard 10 A motion to dismiss may be brought under Federal Rule of Civil Procedure 12(b)(4) for 11 insufficient process or 12(b)(5) for insufficient service of process. “Before a federal court may 12 exercise personal jurisdiction over a defendant, the procedural requirement of service of summons 13 must be satisfied.” Fealy v. Social Sec. Admin., No. 2:13-cv-02282-MMD-VCF, 2014 WL 14 6629546, at *2 (D. Nev. Jul. 25, 2014) (quoting Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 15 Ltd., 484 U.S. 97, 104 (1987)). “Rule 12(b)(5) authorizes the [d]istrict [c]ourt to dismiss a 16 complaint without prejudice or allow the plaintiff leave to cure any defects based on improper 17 service of process.” Id. 18 Federal Rule of Civil Procedure 4(i) sets forth the requirements for service on the United 19 States and its agencies. To serve a United States agency, a party must serve the United States and 20 also send a copy of the summons and of the complaint by registered or certified mail to the 21 agency. Fed. R. Civ. P. 4(i)(2). 22 Analysis 23 The Commissioner argues that plaintiff has failed to effectuate service of process for three 24 reasons. ECF No. 4-1 at 2-3. First, plaintiff’s service failed to include a summons and proof of 25 service to the U.S. Attorney’s Office. Moreover, the proof of summons that plaintiff included 26 with her complaint was from the state court, which is improper since this court has original 27 jurisdiction, necessitating a summons from a federal court. Second, plaintiff herself mailed the 28 complaint, in violation of federal procedural rules. And finally, plaintiff did not address service 1 to the Civil Process Clerk of the United States Attorney’s Office, which is needed to properly 2 serve the United States by certified mail. 3 In opposition, plaintiff argues that she relied on a Social Security Administration notice of 4 appeals council instruction for delivering mailing when she served the United States. ECF No. 6 5 at 1. Plaintiff explained that she tried to hand-deliver her complaint to the U.S. Attorney’s Office 6 in Sacramento, but that a woman who was sitting at the front desk told plaintiff that she would 7 need to “mail the document through certified mail and could not serve the complaint herself.” 8 Plaintiff also states that the woman said, “you need to send that through certified mail.” Id. at 2. 9 Plaintiff states that she relied on this information when she mailed her complaint to the U.S. 10 Attorney’s Office through certified mail. 11 Rule 4(i)(2) provides: “[t]o serve a United States agency or corporation . . . a party must 12 serve the United States and also send a copy of the summons and of the complaint by registered 13 or certified mail to the agency, corporation, officer, or employee.” Fed. R. Civ. P. 4(i). Rule 14 4(i)(1) further provides that, to serve the United States, a party must deliver a copy of the 15 summons and the complaint to the United States attorney for the district where the action is 16 brought and send a copy of each by registered or certified mail to the Attorney General of the 17 United States. Id. Further, the Federal Rules do not allow a party to serve another party to the 18 lawsuit. Fed. R. Civ. P. 4(c)(2). “In the case of a suit against a United States agency, ‘[t]he court 19 must allow a party reasonable time to cure its failure to serve a person required to be served under 20 Rule 4(i)(2), if the party has served either the United States attorney or Attorney General of the 21 United States.’” Fealy, 2014 WL 6629546, at *2. 22 Here, as the Commissioner notes, plaintiff failed to effectuate proper service. Plaintiff’s 23 attempted service of process fails because she mailed the complaint herself, in violation of Rule 24 4(c)(2); did not include a summons; and did not address the certified mail to the Civil Process 25 Clerk, as required by Rule 4(i). 26 As set forth above, plaintiff has failed to properly serve defendant. The issue now 27 becomes whether the court should dismiss the complaint or quash service of process. S.J. v. 28 Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006) (citing Stevens v. Security Pac. 1 Nat’l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976)) (holding that courts have discretion either to 2 dismiss an action or to quash service). If there is a “reasonable prospect that service may yet be 3 obtained” and there is no prejudice to the defendant, a court should quash service rather than 4 dismiss. Scott v. Cty. of San Bernardino, 2019 WL 3059542, at *3 (C.D. Cal. Jan. 2, 2019). 5 Moreover, courts typically quash service when the plaintiff is a pro se litigant who may be 6 unfamiliar with Rule 4’s service requirements. See Hafler v. Cty. of San Luis Obispo, 2018 WL 7 6074531, at *5 (C.D. Cal. Aug. 29, 2018) (collecting cases). 8 Here, notwithstanding ineffective service, defendant has actual notice of the action, 9 plaintiff would be prejudiced by dismissal, and defendant would not be prejudiced by providing 10 plaintiff additional time to complete proper service. Additionally, plaintiff has requested 11 authority under 28 U.S.C. § 1915 to proceed in forma pauperis and has submitted the required 12 affidavit demonstrating that she is unable either to prepay fees and costs or to give security for 13 them. ECF No. 8. Plaintiff’s motion to proceed in forma pauperis is granted, and the court will 14 direct service of the complaint. Therefore, dismissal is not warranted, but service of the summons 15 and complaint should be quashed. 16 Conclusion 17 Accordingly, it is hereby ORDERED that: 18 1. Defendant’s motion to dismiss, ECF No. 4, is granted is granted in part and denied in 19 part. 20 a. Defendant’s motion to dismiss for insufficient service of process is denied; and 21 b. Defendant’s motion to quash service of the summons and complaint is granted. 22 2. Plaintiff’s motion to proceed in forma pauperis, ECF No. 8, is granted. 23 3. Service on defendant shall proceed under the court’s e-service program. Once a 24 summons is issued, the Clerk of Court shall deliver to the Commissioner of Social Security 25 Administration and the United States Attorney’s Office at their designated email addresses a 26 notice of electronic filing of the action along with the summons and complaint. The court has 27 been informed that the Commissioner has agreed not to raise a defense of insufficient service of 28 process if provided with notice of a complaint as detailed in this order. This order is not intended 1 | to prevent parties from making any other motions that are appropriate under the Federal Rules of 2 | Civil Procedure. 3 4 IT IS SO ORDERED.

Dated: _ January 10, 2025 qe 6 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28