1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ERLINDO CASENAS, Case No. 24-cv-08565-PCP

8 Plaintiff,

ORDER GRANTING IN PART AND

9 v. DENYING IN PART MPOA’S MOTION

TO DISMISS; STRIKING DKT. NO. 50

10 MILPITAS POLICE OFFICERS ASSOCIATION, et al., Re: Dkt. Nos. 26, 38, 50 11 Defendants.

12 13 Defendant Milpitas Police Officers Association (MPOA) moves to dismiss self-represented 14 plaintiff Erlindo Casenas’s first amended complaint or to quash service of summons under Federal 15 Rules of Civil Procedure 12(b)(4), 12(b)(5), 12(b)(6), and other grounds. Plaintiff alleges claims 16 against MPOA, the City of Milpitas, the Milpitas Police Department, various police officers, 24 17 Hour Fitness USA, LLC, and one individual, Aarondeep Singh Tumber, arising from plaintiff’s 18 alleged harassment at a 24 Hour Fitness and the officers’ response and subsequent arrest of 19 plaintiff. For the reasons below, MPOA’s motion to dismiss is granted in part and denied in part. 20 BACKGROUND 21 Only a handful of allegations in the first amended complaint concern MPOA. Plaintiff 22 alleges that MPOA represents Milpitas Police Department officers and is responsible for 23 professionalization of the MPD. Dkt. No. 18 (FAC) ¶¶ 7, 74. MPOA has allegedly failed to 24 “supervise, discipline, enforce guidelines, as well as provide adequate training to their employees 25 on the proper procedures for handling mental health emergencies and civil rights of individuals.” 26 FAC ¶¶ 75, 113, 122. 27 After initiating this case, plaintiff filed a first amended complaint. The Court granted the 1 defendants.1 Dkt. No. 41. MPOA subsequently filed its own motion to dismiss. Dkt. No. 38 2 (Mot.). 3 LEGAL STANDARD 4 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include a “short and plain 5 statement of the claim showing that the pleader is entitled to relief.” 6 “A federal court does not have jurisdiction over a defendant unless the defendant has been 7 properly served under Fed. R. Civ. P. 4.” Direct Mail Specialists v. Eclat Computerized Techs., 8 Inc., 840 F.2d 685, 688 (9th Cir. 1988). “Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5) 9 … permit a defendant to challenge the form of summons and the method of service attempted by 10 plaintiff, respectively.” U.S.A. Nutrasource, Inc. v. CNA Ins. Co., 140 F. Supp. 2d 1049, 1052 11 (N.D. Cal. 2001). 12 Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a 13 complaint for failure to state a claim upon which relief can be granted. Dismissal is required if the 14 plaintiff fails to allege facts allowing the court to “draw the reasonable inference that the 15 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 16 “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal 17 theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. 18 Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff 19 need only plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. 20 v. Twombly, 550 U.S. 544, 570 (2007). 21 In considering a Rule 12(b)(6) motion, the Court must “accept all factual allegations in the 22 complaint as true and construe the pleadings in the light most favorable” to the nonmoving party. 23 Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029–30 (9th Cir. 2009). While legal 24 conclusions “can provide the [complaint’s] framework,” the Court will not assume they are correct 25 unless adequately “supported by factual allegations.” Iqbal, 556 U.S. at 679. Courts do not “accept 26 27 1 as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 2 inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell 3 v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 4 ANALYSIS 5 MPOA moves to dismiss the first amended complaint under Federal Rules of Civil 6 Procedure 8(a), 12(b)(4), 12(b)(5), 12(b)(6), and 41(b). The Court denies the motions based on 7 Rules 8(a), 12(b)(4), 12(b)(5), and 41(b), and grants the motion based on Rule 12(b)(6) with leave 8 to amend. 9 The Court denies the motions under Rules 8(a) and 41(b) because the arguments are 10 duplicative of MPOA’s other motions. Specifically, MPOA’s argument that plaintiff “fails to 11 provide any statements that would tend to show that Plaintiff is entitled to relief” in violation of 12 Rule 8(a) is addressed through its Rule 12(b)(6) motion. Mot. 16. MPOA seeks dismissal under 13 Rule 41(b) because “Plaintiff has repeatedly caused undue delays in the disposition of this case, 14 through repeated failures to properly serve MPOA and through repeated failures to file pleadings 15 which sufficiently state a claim upon which relief could be granted.” Mot. 16–17. These 16 arguments are addressed through its 12(b)(4), 12(b)(5), and 12(b)(6) motions. 17 I. 12(B)(4) AND 12(B)(5) MOTION 18 The Court denies MPOA’s Rule 12(b)(4) and 12(b)(5) motions to dismiss or, in the 19 alternative, to quash service of summons. 20 As to Rule 12(b)(4), “[d]ismissals for defects in the form of summons are generally 21 disfavored.” U.S.A. Nutrasource, 140 F. Supp. 2d at 1052. “Technical defects in a summons do 22 not justify dismissal unless a party is able to demonstrate actual prejudice.” Chan v. Soc’y 23 Expeditions, Inc., 39 F.3d 1398, 1404 (9th Cir. 1994). MPOA argues any summons packages it 24 received were defective because they included either a copy of the initial complaint or a draft 25 second amended complaint, but not the operative first amended complaint. Mot. 2–3. But MPOA 26 does not identify any meaningful prejudice from these defects. See McZeal v. Solon House, LLC, 27 No. 23-cv-00297-KAW, 2023 WL 5001451, at *2 (N.D. Cal. Aug. 4, 2023). 1 establishing that service was valid under Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2 2004). “[S]ufficiency of service can be a fact-driven inquiry.” S.J. v. Issaquah Sch. Dist. No. 411, 3 470 F.3d 1288, 1293 (9th Cir. 2006). “A signed return of service constitutes prima facie evidence 4 of valid service ‘which can be overcome only by strong and convincing evidence.’” S.E.C. v. 5 Internet Sols. for Bus. Inc., 509 F.3d 1161, 1166 (9th Cir. 2007). 6 MPOA argues it has not been properly served because it received a forwarded document 7 package from another defendant. Mot. 2. But the motion also indicates that plaintiff sent MPOA a 8 document package in September. Mot. 3. MPOA does not explain why the method of that service 9 was improper. MPOA also acknowledges that plaintiff filed a proof of service “relating to the 10 alleged service of process on MPOA,” but argues it “is inaccurate and does not reflect truthfulness 11 to the Court.” Mot. 7. The motion, however, does not include any declaration attesting to what 12 MPOA received from plaintiff and when.2 Therefore, the only evidence presently in the record is 13 the proof of service at Dkt. No. 34, which is “prima facie evidence of valid service.” See S.E.C., 14 509 F.3d at 1166. 15 MPOA also premises its 12(b)(4) and 12(b)(5) motions on Federal Rule of Civil Procedure 16 4(m). Rule 4(m) governs the time limit for service and requires a plaintiff to serve a defendant 17 within 90 days of filing a complaint. MPOA argues that “[a]s of August 19, 2025, 90 days had 18 passed since the filing of the” first amended complaint, during which plaintiff failed to effect 19 service. Mot. 7. But Rule 4(m) is lenient. See United Food & Com. Workers Union v. Alpha Beta 20 Co., 736 F.2d 1371, 1382 (9th Cir. 1984) (“Rule 4 is a flexible rule that should be liberally 21 construed so long as a party receives sufficient notice of the complaint.”). Even when a defendant 22 is not served within 90 days after the complaint is filed, the court “must dismiss the action without 23 prejudice against that defendant or order that service be made within a specified time.” Fed. R. 24 Civ. P. 4(m) (emphasis added). And “if the plaintiff shows good cause for the failure, the court 25 must extend the time for service for an appropriate period.” Id. (emphasis added). Even if plaintiff 26

27 2 Civil Local Rule 7-5 requires “[f]actual contentions made in support of or in opposition to any 1 did not serve MPOA by August 19, 2025 but instead did so on September 8, 2025, see Dkt. No. 2 34, the circumstances here warrant a short extension of the deadline for service rather than 3 dismissal. 4 II. 12(B)(6) MOTION 5 Plaintiff brings nine claims against the various defendants. Although plaintiff argues his 6 allegations are sufficient to state claims against MPOA under 42 U.S.C. § 1983 for failure to train 7 and/or for conspiracy to cover up misconduct, the first amended complaint alleges only two claims 8 against MPOA: one for negligence and one for breach of the duty of care and unsafe premises. 9 Dkt. No. 44, at 3; FAC ¶¶ 113, 122. Plaintiff fails to state a claim against MPOA under either 10 theory.3 11 To state a claim for negligence under California law, a plaintiff must establish (1) the 12 defendant owed a duty of care, (2) the defendant breached its duty of care, and (3) the breach 13 caused the resulting injury. Radus Tek Servs., Inc. v. IDC Techs. Inc., 767 F. Supp. 3d 972, 978 14 (N.D. Cal. 2025) (citation omitted).4 Even if MPOA owed plaintiff a duty of care through its 15 alleged responsibilities to professionalize, supervise, or train officers, plaintiff has not plausibly 16 alleged MPOA breached that duty in a manner that caused his alleged injuries. He provides only 17 conclusory allegations that MPOA “was negligent in professionalizing and supervising” officers 18 and “breached its duty of care to plaintiff by failing to supervise and discipline” officers who then 19 “engaged in a pattern of misconduct” and “failed to intervene” in harassment of plaintiff. FAC 20 ¶¶ 113, 122. Such “[t]hreadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice” to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 22 (2009). 23 Premises liability is a form of negligence under California law. Carter v. Nat’l R.R. 24 Passenger Corp., 63 F. Supp. 3d 1118, 1144 (N.D. Cal. 2014) (citation omitted). “To prevail on a 25 26 3 The Court grants MPOA’s request for “judicial notice that the MPOA operates as a non-profit labor organization under 26 U.S. Code § 501(c)(5) and has filed as a tax-exempt labor 27 organization under said regulation with the IRS and California Franchise Tax Board.” See Mot. 2. 1 premises liability claim, a plaintiff must establish that the defendant owned or controlled the 2 property, that the defendant was negligent in the use or maintenance of the property, that the 3 plaintiff was harmed, and that the defendant’s negligence was a substantial factor in causing the 4 harm.” Id. Here, plaintiff does not allege MPOA owned or controlled any property on which he 5 was harmed. His premises liability claim against MPOA thus fails as well. 6 III. THE COURT STRIKES PLAINTIFF’S SUPPLEMENTAL BRIEF AT DKT. NO. 50 7 Over a month after MPOA filed its reply brief on this motion, plaintiff filed a supplemental 8 opposition. Dkt. No. 50. Under this Court’s Civil Local Rule 7-3(d), “[o]nce a reply is filed, no 9 additional memoranda, papers or letters may be filed without prior Court approval.” Plaintiff’s 10 supplemental opposition is improper because he did not seek prior Court approval before filing it. 11 The Court therefore strikes the supplemental opposition and does not consider its arguments on 12 the merits. 13 The Court does, however, briefly comment on a few other points for plaintiff’s benefit as a 14 self-represented litigant. First, plaintiff’s opposition brief filed at Dkt. No. 43, which the Court did 15 not consider, and attached at Dkt. No. 50, includes the name of an attorney as “Counsel for 16 Plaintiff” on the caption and signature pages. If plaintiff is represented, counsel must file a Notice 17 of Appearance in this case pursuant to Civil Local Rule 5-1(c)(2). 18 Second, the Court does not consider plaintiff’s request raised in the supplemental 19 opposition to “declare MPOA in default.” “Any written request to the Court for an order must be 20 presented” through a motion pursuant to Civil Local Rule 7-1. 21 Third, plaintiff references his “successful opposition to the City’s similar motion … where 22 service issues were resolved in Plaintiff’s favor.” The Court’s Order at Dkt. No. 41 granting the 23 City defendants’ motion to dismiss does not address service. The Order also granted the City 24 defendants’ motion, dismissing plaintiff’s claims against them. Although the Order granted 25 plaintiff leave to file an amended complaint within 35 days, plaintiff did not do so. His claims 26 against the City defendants have therefore been dismissed with prejudice. 27 CONCLUSION 1 granted in part and denied in part. The Court denies the motion to the extent it is based on Federal 2 Rules of Civil Procedure 8(a), 12(b)(4), 12(b)(5), and 41(b), but grants the Rule 12(b)(6) motion. 3 || Plaintiffs claims against MPOA are therefore dismissed. Plaintiff is granted leave to file an 4 || amended complaint by February 3, 2026. If plaintiff does not timely file an amended 5 || complaint, his claims against MPOA will be dismissed with prejudice. Plaintiff must properly 6 serve MPOA with any amended complaint under the Federal Rules of Civil Procedure. If plaintiff 7 || requires extra time to file an amended complaint due to his recent medical treatments, he must file 8 || a motion requesting additional time in advance of the deadline. 9 IT IS SO ORDERED. 10 Dated: December 30, 2025 11 2 Maybe P. Casey Mts 13 United States District Judge © 15 16

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