McZeal v. Solon House, LLC
- Kandis Westmore
- 4:23-cv-00297
- U.S. District Court · Northern District of California
- 4
In McZeal v. Solon House, Judge Westmore quashed service, denied dismissal, and denied McZeal’s motion to strike.
Alfred McZeal must properly serve the defendants within 60 days. The defendants’ service challenge succeeded in part, but the case was not dismissed at this stage.
What happened
In McZeal v. Solon House, LLC, Alfred McZeal sued several defendants over the sale of his property and his later eviction. McZeal represented himself. The defendants moved to dismiss, arguing that he had not properly served them, and McZeal moved to strike their motion.
The court found that McZeal mailed the summons and complaint but did not show that he had included the required acknowledgment forms or that the defendants had signed them. The court therefore found service invalid, but declined to dismiss the case because McZeal might be able to serve the defendants properly, the defendants had not been shown to suffer prejudice, and McZeal was representing himself.
Judge Kandis Westmore granted the defendants’ motion in part by quashing the attempted service, denied the motion to the extent it sought dismissal, and denied McZeal’s motion to strike. The court gave McZeal 60 days to serve the defendants under the federal service rules and warned that failure to do so may result in dismissal without prejudice.
The detailed version
- McZeal v. Solon House, LLC · No. 4:23-cv-00297
- Kandis Westmore
- Aug. 4, 2023
Background
Alfred McZeal filed a complaint against Solon House, LLC; the Del Prado Family Trust; Bennett Hong; B. Hong Pro Fiduciary; Glasser & McDonagh; Stephen Bernard McDonagh; Bradford Wang; and RE/MAX Gold. The complaint alleged claims arising from the sale of McZeal’s property and a later eviction. RE/MAX Gold’s motion to dismiss was addressed in a separate order.
The defendants addressed in this order moved to quash service of process and dismiss the complaint. McZeal, who was representing himself, opposed the motion and filed a motion to strike it. He argued that the defendants’ motion was untimely, lacked a required supporting memorandum, was not properly served, and would prejudice him because he had applications for entry of default pending.
Service of Process
The court applied Federal Rule of Civil Procedure 12(b)(5), which permits a defendant to challenge the way the summons and complaint were served. Under the federal rules, individuals generally must be served personally, at their dwelling, through an authorized agent, or under applicable state law. Entities must be served through an officer or authorized agent or under applicable state law.
McZeal’s proofs of service showed that he mailed the summons and complaint to each defendant. The court found no indication that he included the acknowledgments required for service by mail under California law or that any defendant signed and returned an acknowledgment. The court therefore concluded that McZeal’s attempted service was invalid.
Disposition
After finding service insufficient, the court had discretion either to dismiss the action or to quash the service and allow additional time for proper service. It declined to dismiss the action because the record did not show that McZeal would be unable to serve the defendants properly, did not show prejudice to the defendants, and indicated that dismissal at that point would likely be inappropriate given McZeal’s self-represented status.
The court rejected McZeal’s other arguments. Because his attempted service was insufficient, the defendants’ deadline to respond had not begun. The court found that the defendants had filed a supporting memorandum and served McZeal. It also found that filing the motion through the court’s electronic-filing system properly served RE/MAX Gold’s attorney. Finally, the court noted that McZeal’s pending default applications had already been denied, making his prejudice argument moot.
The court granted the defendants’ motion in part by quashing McZeal’s attempted service, denied the motion to the extent it requested dismissal, and denied McZeal’s motion to strike. McZeal was ordered to serve the defendants in accordance with Federal Rule of Civil Procedure 4 within 60 days of the order. The court stated that failure to do so may result in dismissal without prejudice without further notice.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.