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Aguilera v. Gonzales

United States District Court, D. New Mexico

June 13, 2019

EDDIE DAN AGUILERA, Plaintiff,
v.
DAVID GONZALES and J. O'GUINN, Defendants.

          MEMORANDUM OPINION AND ORDER

         On April 12, 2019, pro se Plaintiff Eddie Aguilera (Plaintiff) filed his AMENDED COMPLAINT (Doc. 9) (Amended Complaint) alleging constitutional violations and bringing claims under 42 U.S.C. § 1983 against Defendants the City of Albuquerque, Albuquerque Police Department (APD) Lieutenant David Gonzales (Defendant Gonzales), and APD Officer Jonathan O'Guin (Defendant O'Guin, improperly named as J. O'Guinn). Plaintiff's claims arise from an alleged assault on his person by Defendant Gonzales and Defendant O'Guin. Because Plaintiff failed to allege that a City of Albuquerque policy or custom was the moving force behind the constitutional deprivations allegedly committed by City of Albuquerque employees, the Court sua sponte dismissed Plaintiff's claims against the City of Albuquerque without prejudice, in accordance with 28 U.S.C. § 1915(e)(2)(ii).[1] Remaining Defendants Gonzales and O'Guin now ask the Court to dismiss Plaintiff's claims against them as well, asserting insufficient process and improper service.[2] The Motion is fully briefed.[3] The Court will deny the Motion.

         I. BACKGROUND [4]

         On April 19, 2019, soon after Plaintiff filed his Amended Complaint, Summonses were issued to the City of Albuquerque, Defendant Gonzales, and Defendant O'Guin. The United States Marshals Service (USMS) served these Summonses because Plaintiff is proceeding pro se. However, Plaintiff filled out the Summonses and addressed the envelopes, which were then sent through certified mail by the USMS. Doc. 15-1, 15-2, 15-3. The Summons to Defendant Gonzales contained a case caption naming Plaintiff, Defendant Gonzales, and the City of Albuquerque, but not naming Defendant O'Guin. Doc. 15-1. It was directed to Defendant Gonzales at the APD street address, and then listed this same APD street address again in the section where it should have contained the name and address of Plaintiff. Id. Similarly, the Summons to Defendant O'Guin contained a case caption naming Plaintiff, Defendant O'Guin, and the City of Albuquerque, but not naming Defendant Gonzales. Doc. 15-2. It was directed to Defendant O'Guin at the APD street address, and then listed this same APD street address again in the section below, where it should have contained the name and address of Plaintiff. Id. Both Summonses were sent via certified mail, but the envelope was addressed only to APD, and not specifically to either Defendant Gonzales or Defendant O'Guin. Doc. 15-3. Defendants were served on May 13, 2019, and the Summonses were returned executed on May 28, 2019. See Docs. 13 & 14. The returns of service state that the certified mail envelope was accepted by Angela Langley, APD Receptionist. Id. Defendant Gonzales and Defendant O'Guin do not deny that they received actual notice of Plaintiff's claims against them, but they nevertheless contend that Plaintiff's suit must be dismissed due to errors in the content of the Summonses and in the method of their delivery.

         II. LEGAL STANDARD

         The Court has jurisdiction under 28 U.S.C. §§ 1343 and 1331 because Plaintiff brings civil rights claims under federal law. In evaluating a motion to dismiss, the Court takes all allegations of material fact in the Amended Complaint as true and construes them in the light most favorable to the nonmoving party. Warth v. Seldin, 422 U.S. 490, 501 (1975). The Court will not consider materials outside of the pleadings when resolving a motion to dismiss, other than those referenced in the Complaint and central to Plaintiff's claim, or court documents of which the Court may take judicial notice. See Pace, 519 F.3d at 1072-73 (In deciding a motion to dismiss, district courts may properly consider documents referred to in the complaint and central to the plaintiff's claim, and may take judicial notice of adjudicative facts.); St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979) (“[F]ederal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”). Because Defendants' Motion is based on procedural error, the Court will take judicial notice of the court documents relevant to the service of process in this case. “Plaintiff bears the burden of establishing validity of service.” Silver v. Hamrick & Evans, LLP, No. CV 18-416 JAP/JHR, 2018 WL 3801249, *2 (D.N.M. Aug. 9, 2018) (citing Fed. Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992)).

         III. DISCUSSION

         Defendant Gonzales and Defendant O'Guin were served on May 13, 2019, by certified mail. However, they assert that the Summonses were facially defective and improperly delivered, warranting dismissal. Federal Rule of Civil Procedure 12(b)(4) allows a motion to dismiss due to insufficient process, and relates to the content of the summons itself, while Rule 12(b)(5) authorizes a motion to dismiss for insufficient service of process and applies to the delivery of the summons. Fed.R.Civ.P. 12(b)(4), 12(b)(5).

         The proper content of a valid summons is specified in Rule 4(a)(1):

A summons must:
(A) name the court and the parties;
(B) be directed to the defendant;
(C) state the name and address of the plaintiff's attorney or--if unrepresented--of the plaintiff;
(D) state the time within which the defendant must appear and defend;
(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the ...

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