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Foley v. Hermes

United States District Court, D. Nevada

February 2, 2018

MICHAEL FOLEY, Plaintiff,
v.
CHRISTOPHER HERMES, et al., Defendants.

          ORDER(1)GRANTING MOTION TO DISMISS; AND (2) DENYING MOTION TO AMEND, (ECF 8, 13, 27, 34)

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         Plaintiff Michael Foley sued his children's schools and various school officials, as well as his ex-wife, alleging that on various dates he was stopped from entering school grounds and accessing school notices and records, in violation of his constitutional rights.[1] Defendants Paul Carapucci, Jr., Monica Lang, Pamela Norton-Lindemuth, Christopher Hosein, Doreen Kwiecen, Debbie Hancock, Carol Erbach, Christopher Hermes, and Canarelli Middle School move to dismiss.

         The defendants argue that Hosein was improperly served, and Canarelli Middle School is not a proper defendant. They further argue that Foley's claims under 42 U.S.C. § 1983 fail as a matter of law because he has not shown a violation of any right protected by the Constitution. In the alternative, they argue that these individual defendants are entitled to qualified immunity. Foley responds that his constitutional right to manage and direct his children's education was violated. He also moves to amend his complaint to add or substitute a defendant and add claims under the Fourteenth Amendment.

         The parties are familiar with the facts in this case. I will not repeat them here except where necessary. I grant the defendants' motions to dismiss with prejudice as to claims against Canarelli Middle School and any claims arising out of allegations regarding Foley's daughter T, and without prejudice as to all other claims against these defendants. I deny Foley's motions to amend because they do not comply with Local Rule 15-1(a). But I will grant Foley leave to amend his complaint as discussed below.

         I. ANALYSIS

         A. Motion to Quash Service on Defendant Hosein

         “A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under [Federal Rule of Civil Procedure] 4.” Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). Rule 12(b)(5) permits a defendant to challenge the mode or method of service of the summons and complaint. Where the validity of service is contested, the burden is on the party claiming proper service to establish its validity. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). If service of process is insufficient, I have the discretion to dismiss an action or to quash service. See, e.g., S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006).

         Under Rule 4(e), an individual must be served by delivering a copy personally, leaving a copy at the person's dwelling with a resident of suitable age and discretion, or delivering a copy to an agent authorized to receive service of process. An individual can also be served by following state law. Fed.R.Civ.P. 4(e)(1). Nevada's rules for serving individuals are identical to the federal rules. See Nev. R. Civ. P. 4(d)(6).

         According to the proof of service provided by Foley, the summons for Hosein was served on Leah Rhodus, who was designated to accept service of process on behalf of the Clark County School District. ECF No. 11 at 1. Foley has not shown that Rhodus was authorized to receive service on behalf of Hosein. Because Hosein was not properly served, I will grant the motion to quash service as to him.

         B. Motions to Dismiss

         In considering a motion to dismiss, “all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party.” Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). However, I do not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations in the complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). A plaintiff must make sufficient factual allegations to establish a plausible entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Such allegations must amount to “more than labels and conclusions, [or] a formulaic recitation of the elements of a cause of action.” Id. at 555.

         i. Defendant Canarelli Middle School

         The defendants move to dismiss claims against Canarelli Middle School because it is not a distinct entity capable of being sued. Foley appears to accept this argument, instead asking for leave to amend. Because Foley does not respond to this argument, he consents to dismissal. L.R. 7-2(d). Therefore, I dismiss all claims against Canarelli Middle School. Amendment would be futile as to the school, as it is not a political subdivision capable of being sued. See Nev. Rev. Stat. ยงยง 41.031; 41.305. Therefore, I deny leave to amend as to defendant Canarelli Middle ...


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