McZeal v. Solon House, LLC

Background

Alfred McZeal, proceeding without a lawyer, filed a complaint against multiple defendants alleging claims arising from the sale of his property and a subsequent eviction. Peninsula Gold, Inc., doing business as RE/MAX Gold, moved to dismiss the complaint or, alternatively, to quash service of the summons. The opinion refers to this defendant as the moving defendant.

The proof of service stated that a summons for the defendant was mailed to an address in Daly City, California. The defendant argued that McZeal had not properly served it because he did not include the notice and acknowledgment materials required for service by mail under California law. It also argued that the summons was defective because it did not include McZeal’s address. McZeal argued that notice of the lawsuit and the federal procedure for requesting a waiver of service were sufficient, and that dismissal would unfairly prejudice him.

Court’s Analysis

Federal Rule of Civil Procedure 12(b)(4) permits a challenge to the contents of the summons, while Rule 12(b)(5) permits a challenge to the method of service. A corporation, partnership, or association must be served by delivering the summons and complaint to an authorized officer or agent, or by following applicable state law.

The court rejected the challenge under Rule 12(b)(4). The only defect identified in the summons was the omission of McZeal’s address, and the defendant did not argue that this omission caused actual prejudice. The court noted that McZeal’s address appeared on the civil cover sheet and the docket.

The court nevertheless found that service was insufficient under Rule 12(b)(5). McZeal mailed the summons and complaint rather than serving an officer or authorized agent. Although California law permits service by mail, the mailing is valid only when the required acknowledgment is returned signed. The record did not show that McZeal included the required acknowledgment or that the defendant signed one.

The court also rejected McZeal’s reliance on Rule 4(d). That rule provides a procedure for requesting that a defendant waive service and for seeking service costs if the defendant refuses. It does not make service valid merely because the defendant received notice of the lawsuit. The opinion also states that there was no indication McZeal properly requested a waiver, and the defendant had stated that it would not voluntarily waive service.

Disposition

The court exercised its discretion to quash the defective service rather than dismiss the action. It cited the absence of an indication that McZeal could not properly serve the defendant, the lack of apparent prejudice to the defendant, and McZeal’s status as a self-represented litigant.

The court granted the defendant’s motion in part by quashing McZeal’s attempted service, but denied the motion to the extent it requested dismissal. McZeal was ordered to serve the defendant 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.