1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MELCHOR KARL T. LIMPIN, Case No.: 16-CV-2351-AJB-BLM

12 Plaintiff,

ORDER:

13 v. (1) GRANTING FEDERAL 14 ROBERT MCSEVENEY, Immigration

DEFENDANTS’ MOTION TO

Judge, et al., 15 DIMISS IN THEIR OFFICIAL Defendants. CAPACITY 16

17 (2) GRANTING FEDERAL

DEFENDANTS’ MOTION TO

18

DISMISS IN THEIR INDIVIDUAL

19 CAPACITY

20 (Doc. No. 32.) 21 Pending before the Court is federal Defendants’ motion to dismiss in their official 22 capacity and in their individual capacity. (Doc. No. 32.) Plaintiff Melchor Karl T. Limpin 23 opposes this motion. (Doc. No. 37.) After a careful review of the entire record, and for the 24 reasons set forth below, the Court (1) GRANTS federal Defendants’ motion to dismiss in

25 their official capacity and (2) GRANTS federal Defendants’ motion to dismiss in their 26 individual capacity. 27 // 28 // 1 I. BACKGROUND 2 The following facts are taking from Plaintiff’s first amendment complaint 3 (“FAC”). 4 The instant matter revolves around Plaintiff’s civil action for damages and 5 injunctive relief for alleged constitutional violations by all defendants named. (See 6 generally Doc. No. 19.) Plaintiff was arrested on January 4, 2015, by the San Diego 7 Police Department for felony drug possession with intent to sale. (Id. ¶ 1.) On January 24, 8 2015, Plaintiff pled guilty and was sentenced to serve six months in custody and six 9 months of probation. (Id.) Plaintiff was released from custody on July 6, 2015. (Id.) On 10 July 29, 2015, Plaintiff was at the Vista Probation Office for his weekly mandatory 11 supervision with Defendant Hymas. (Id. ¶ 4.) During this time, Defendants Cobian and 12 Larwa from Immigration and Customs Enforcement (“ICE”) seized and detained 13 Plaintiff. (Id. ¶ 1.) Defendants Cobian and Larwa presented Plaintiff with a notice to 14 appear and a warrant for arrest of an alien for an aggravated felony. (Id.) This aggravated 15 felony was the felony drug possession with intent to sale Plaintiff was arrested for on 16 January 4, 2015. (Id.) The warrant for arrest and notice to appear alleged deportable 17 charges based on the aggravated felony. (Id.) 18 Plaintiff alleges this arrest violated his Fourth Amendment rights because the 19 warrant for arrest and notice to appear were issued by Defendants, ICE agents Porter and 20 Cobian, not by a magistrate or someone neutral and detached from law enforcement. (Id. 21 ¶ 5.) Plaintiff alleges his deportable charges were not determined until September 1, 22 2015, therefore, he was not given a 48-hour prompt judicial review of his initial arrest on 23 July 29, 2015, in violation of his Fourth Amendment rights. (Id. ¶ 6.) Plaintiff also 24 alleges he was never given a proper Preap bond hearing and was instead subject to a 25 custody trial on his danger to the community and flight risk. (Id. ¶ 7-15.) Plaintiff further 26 alleges his Eighth Amendment and Equal Protection rights were violated when he was 27 arrested, put in a private prison, and forced to face Defendants (Immigration Judge 28 Robert McSeveny and Department of Homeland Security prosecuting attorneys). (Id. ¶ 1 28-30.) 2 In sum, Plaintiff brings six causes of action under Bivens alleging constitutional 3 violations against these seven federal Defendants in their official and individual capacity. 4 II. PROCEDURAL BACKGROUND 5 Plaintiff filed his original complaint on September 16, 2016. (Doc. No. 1.) No 6 further action was taken except for Plaintiff’s three separate notice of change of addresses 7 he filed with the Court. (Doc. Nos. 2, 4, 5.) On August 27, 2018, the case was dismissed 8 for want of prosecution pursuant to Federal Rule of Civil Procedure 4(m). (Doc. No. 8.) 9 Plaintiff then filed a motion for extension of time to file, a motion to amend/correct, a 10 motion for leave to proceed n forma pauperis, and a motion for reconsideration on 11 September 7, 2018. (Doc. Nos. 10, 11, 12, 14.) On December 10, 2018, Plaintiff’s motion 12 to amend/correct and motion for reconsideration were granted by the Court. (Doc. No. 13 18.) 14 Plaintiff filed his amended complaint on December 14, 2018. (Doc. No. 19.) The 15 Clerk issued a summons the same day. (Doc. No. 20.) On January 3, 2019, Plaintiff 16 served the U.S. Attorney’s Office and the U.S. Attorney General with his amended 17 complaint and summons. (Doc. No. 21.) Defendants filed a motion to stay on January 9, 18 2019. (Doc. No. 22.) This motion was granted on the same day. (Doc. No. 23.) Plaintiff 19 filed a motion for default judgment on May 22, 2019. (Doc. No. 26.) Plaintiff’s motion 20 for default judgment was denied on June 3, 2019, because Plaintiff had not effectuated 21 service on any of the federal Defendants in their individual capacity. (Doc. No. 27.) 22 Thereafter, Plaintiff filed four separate certificates of service. (Doc. Nos. 28, 29, 23 30, 31.) First, Plaintiff filed a certificate of service indicating the U.S. Department of 24 Homeland Security agency and/or Kevin K. McAleenan; Executive Office for 25 Immigration Review agency and/or Robert B.C. McSeveny; U.S. Immigration and 26 Customs Enforcement Agency and/or ICE agents Porter, Cobian, and Larwa; San Diego 27 Office of Chief Counsel for Immigration and Customs Enforcement agency and/or DHS 28 attorneys Guy Grande, Kerri Calcador, and Jeffery R. Linblad; and the Office of 1 Immigration Litigation were served via certified mail on June 4, 2019. (Doc. No. 28.) 2 Second, Plaintiff filed a certificate of service indicating the U.S. Department of 3 Homeland Security agency with attention to Kevin K. McAleenan; Executive Office for 4 Immigration Review agency with attention to Robert B.C. McSeveny; U.S. Immigration 5 and Customs Enforcement Agency with attention to ICE agents Porter, Cobian, and 6 Larwa; and the Office of the Principal Legal Advisor with attention to DHS attorneys 7 Guy Grande, Kerri Calcador, and Jeffery R. Linblad were served via mail by a third party 8 on July 31, 2019. (Doc. No. 29.) Third, Plaintiff filed a certificate of service indicating 9 Paul, Weiss, Rifkind, Wharton & Garrison LLP with attention to Jeh C. Johnson were 10 served via mail by a third party on August 19, 2019. (Doc. No. 30.) Lastly, Plaintiff filed 11 a certificate of service indicating Robert McSeveny, Jeh C. Johnson, ICE agent Porter, 12 ICE agent Cobian, ICE agent Larwa, DHS attorney Guy Grande, and DHS attorney Kerri 13 Calcador were personally served by a resident of San Diego County that was over the age 14 eighteen and not a party in this lawsuit on September 16, 2019. (Doc. No. 31.) 15 Defendants then filed a motion to dismiss on November 15, 2019. (Doc. No. 32.) 16 On December 20, 2019, Plaintiff filed an opposition to the motion to dismiss. (Doc. No. 17 37.) On January 3, 2020, Defendants filed a reply to Plaintiff’s opposition to the motion 18 to dismiss. (Doc. No. 38.) 19 III. LEGAL STANDARD 20 A. Federal Rule of Civil Procedure 12(b)(1) 21 A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(1) if, 22 considering the factual allegations in the light most favorable to the plaintiff, the action: 23 (1) does not arise under the Constitution, laws, or treaties of the United States, or does 24 not fall within one of the other enumerated categories of Article III, Section 2, of the 25 Constitution; (2) is not a case or controversy within the meaning of the Constitution; or 26 (3) is not one described by any jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 27 (1962). When considering a motion to dismiss pursuant to Rule 12(b)(1), the court is not 28 restricted to the face of the pleadings but may review any evidence to resolve factual 1 disputes concerning the existence of jurisdiction. McCarthy v. United States, 850 F.2d 2 558, 560 (9th Cir.1988), cert. denied, 489 U.S. 1052 (1989); Biotics Research Corp. v. 3 Heckler, 710 F.2d 1375, 1379 (9th Cir.1983). A federal court is presumed to lack subject 4 matter jurisdiction until the plaintiff establishes otherwise. Kokkonen v. Guardian Life 5 Ins. Co. of America, 511 U.S. 375 (1994); Stock West, Inc. v. Confederated Tribes, 873 6 F.2d 1221, 1225 (9th Cir.1989). Therefore, the plaintiff bears the burden of proving the 7 existence of subject matter jurisdiction. Stock West, 873 F.2d at 1225; Thornhill 8 Publishing Co., Inc. v. Gen’l Tel & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979). 9 B. Federal Rule of Civil Procedure 12(b)(2), (4), and (5) 10 The Court cannot exercise personal jurisdiction over a defendant unless there has 11 been proper service over a defendant pursuant to Rule 4 of the Federal Rules of Civil 12 Procedure. Direct Mail Specialists v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 13 (9th Cir.1988). When service of process is challenged, the party on whose behalf service 14 was made—in this case, Plaintiff—has the burden to establish its validity. Aetna Bus. 15 Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir.1981). 16 Although Rule 4 is to be construed liberally, service is not effective unless a plaintiff has 17 substantially complied with its requirements. Direct Mail, 840 F.2d at 688. See also 18 Nordic Bank PLC v. Trend Group, Ltd., 619 F.Supp. 542, 564 (D.C.N.Y.1985) (citing 19 Phillips v. Murchison, 194 F.Supp. 620, 622 (S.D.N.Y.1961) (once an amended 20 complaint has been filed, service of the superseded original complaint is inappropriate). 21 Where service of process is deemed insufficient, the district court has broad discretion to 22 either dismiss the action or to retain the case but quash service. Montalbano v. Easco 23 Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir.1985). 24 Federal Rule of Civil Procedure 4(e) provides that individuals may be served by 25 one of two methods. First, service may be perfected according to the law of the state in 26 which the district court is located, or in which service is effected. Fed. R. Civ. P. 4(e)(1). 27 Second, service may be done by presenting a copy of the summons and complaint to the 28 individual personally, by leaving copies at the individual's home with a person of suitable 1 age, or by delivering a copy of each to an agent authorized by appointment or by law to 2 receive service of process. Fed. R. Civ. P. 4(e)(2). 3 IV. DISCUSSION 4 The Court will first address Defendants’ motion to dismiss in their official capacity 5 based on subject matter jurisdiction. Then the Court will address the Defendants’ motion 6 to dismiss in their individual capacity based on personal jurisdiction. 7 A. Defendants’ Motion to Dismiss in Their Official Capacity 8 Defendants contend Plaintiff’s compliant against them in their official capacity 9 should be dismissed for lack of subject matter jurisdiction. (Doc. No. 32 at 4-5.) 10 Defendants argue the United States has not waived its sovereign immunity for actions 11 seeking damages for constitutional violations, therefore, the Court lacks subject matter 12 jurisdiction. (Doc. No. 32 at 4.) Defendants also argue a cause of action under Bivens 13 cannot be brought against federal defendants in their official capacity. (Doc. No. 32 at 5.) 14 Plaintiff never explains in his FAC why the Court has subject matter jurisdiction 15 over the federal defendants in their official capacity. (See Doc. No. 19.) Plaintiff argues 16 in his opposition to Defendants’ motion he is seeking only injunctive relief against 17 Defendants in their official capacity. (Doc. No. 37 at 9.) However, Plaintiff still does not 18 address why the Court has subject matter jurisdiction over the federal defendants in their 19 official capacity. (Doc. No. 37.) Plaintiff’s only response is to allege an Administrative 20 Procedure Act against the defendants, but this claim is never brought up in his FAC. 21 (Doc. No. 37 at 9.) 22 Sovereign immunity shields the federal government and its agencies from being 23 sued unless there is a waiver. FDIC v. Meyer, 510 U.S. 471, 475 (1994). Therefore, we 24 must determine if the United States has waived sovereign immunity under Bivens claims. 25 “‘The purpose of Bivens is to deter the officer,’ therefore, a Bivens claim should be 26 ‘brought against the individual for his or her own act.’” Lanuza v. Love, 899 F.3d 1019, 27 1028-29 (9th Cir. 2018) (quoting FDIC v. Meyer, 510 U.S. 471, 485 (1994)). Bivens 28 claims are not available against federal agencies or federal agents sued in their official 1 capacity. Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250, 1257 (9th Cir. 2008). Here, 2 Plaintiff seeks to bring Bivens claims against federal defendants in their official capacity. 3 However, the United States has not waived their sovereign immunity and Bivens claims 4 cannot be brought against federal agents sued in their official capacity. Plaintiff has the 5 burden of proving the existence of subject matter jurisdiction and has failed to do so. 6 Accordingly, the Court lacks subject matter jurisdiction. 7 B. Defendants’ Motion to Dismiss in Their Individual Capacity 8 Defendants also contend Plaintiff’s complaint against them in their individual 9 capacity should be dismissed for lack of personal jurisdiction. (Doc. No. 32 at 6.) 10 Defendants argue they were never served the FAC in accordance with Federal Rule of 11 Civil Procedure 4. (Id.) Plaintiff argues he did serve defendants in accordance with 12 Federal Rule of Civil Procedure 4 when he served the Department of Justice attorneys via 13 certified mail on December 14, 2018, and on January 3, 2019. (Doc. No. 37 at 30.) 14 Plaintiff argues the Department of Justice attorneys are representing Defendants in their 15 individual capacity and are consider agents under Federal Rule of Civil Procedure 16 4(e)(2)(C). (Doc. No. 37 at 30.) 17 Service can be effectuated when a copy is delivered to “an agent authorized by 18 appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e)(2)(C). Plaintiff 19 argues 28 C.F.R. § 50.15 authorizes the Department of Justice attorneys to accept service 20 on behalf of Defendants in their individual capacity. (Doc. No. 37 at 31.) However, this 21 statute merely details the representation of federal officials and employees by Department 22 of Justice attorneys. See 28 C.F.R. § 50.15. It does not designate Department of Justice 23 attorneys as agents allowed to receive service of process as described under Federal Rule 24 of Civil Procedure 4(e)(2)(C). Id. The relationship between attorney and client does not 25 by itself convey the authority for an attorney to accept service on behalf of his client. U.S. 26 v. Ziegler Bolts and Parts Co., 111 F.3d 878, 881 (Fed. Cir. 1997). The record needs to 27 indicate the attorney exercised authority beyond the attorney-client relationship, 28 including the authority to accept service. Id. Here, the record does not indicate the 1 Department of Justice attorneys are authorized to receive process of service as agents of 2 the federal Defendants. Defendants never authorized the Department of Justice attorneys 3 by appointment to receive service for them. The Department of Justice attorneys are also 4 not authorized by law under 28 C.F.R. § 50.15 to receive service on behalf of Defendants. 5 Therefore, service was not effectuated when the Department of Justice attorneys were 6 served, and service was not proper under Federal Rule of Civil Procedure 4. 7 In the alternative, Plaintiff did file four certificates of service beginning on June 4, 8 2019. (Doc. Nos. 28, 29, 30, 31.) These four certificates of service indicate service in 9 different ways (via certified mail, regular mail by third party, and service by third party) 10 to different groupings of the Defendants. (Id.) However, defendants must be served 11 within 90 days of the complaint being filed otherwise the complaint must be dismissed 12 without prejudice. Fed. R. Civ. P. 4(m). The case was reopened on December 10, 2018. 13 (Doc. No. 18.) Plaintiff filed his FAC on December 14, 2018, meaning he had 90 days to 14 serve Defendants in accordance with Federal Rule of Civil Procedure 4. (Doc. No. 19.) 15 Plaintiff would have had until March 14, 2019, to serve Defendants, but the Court 16 ordered a stay, which allowed all deadlines to be extended in accordance with the length 17 of the stay. (Doc. No. 23.) The stay lasted five weeks. (Doc. No. 24.) Five weeks from 18 March 14, 2019, is April 18, 2019. Therefore, Plaintiff had until April 18, 2019, to serve 19 Defendants properly. Plaintiff’s certificates of service indicate the earliest any of the 20 Defendants were served in their individual capacity was June 4, 2019, therefore, service 21 was not timely under Fed. R. Civ. P. 4(m). Accordingly, the Court lacks personal 22 jurisdiction. 23 V. CONCLUSION 24 As set forth more fully above, the Court GRANTS Defendants’ motions to dismiss 25 in their official capacity. The Court also GRANTS Defendants’ motions to dismiss in 26 their individual capacity. The Court DISMISSES Plaintiff’s complaint WITHOUT 27 prejudice. Fed. R. Civ. P. 4(m) (the action must be dismissed “without prejudice against 28 that defendant or order that service be made within a specified time”). 1 2 || IT IS SO ORDERED. 3 4 |lDated: August 12, 2020 C ) 1) ry : 5 Hon. Anthony J.@Battaglia 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28