United States District Court, D. Arizona
Eddie L. Pratt, Plaintiff,
Office of Civil Rights, et al., Defendants.
JAMES A. TEILBORG, District Judge.
Pending before the Court are various motions which the Court will now address.
I. Office for Civil Rights' Motion to Dismiss
The U.S. Department of Education's Office for Civil Rights ("OCR") seeks dismissal of Plaintiff's Amended Complaint (Doc. 4) for three reasons: 1) insufficient service of process under Federal Rule of Civil Procedure ("Rule") 12(b)(5); 2) lack of subject matter jurisdiction under Rule 12(b)(1); and 3) failure to state a claim upon which relief can be granted under Rule 12(b)(6). (Doc. 51 at 1).
A. Insufficient Service of Process
OCR claims that Plaintiff's complaint should be dismissed for insufficient service of process under Rule 4(i). OCR alleges that Plaintiff: 1) never sent a copy of the summons and complaint to OCR; 2) failed to serve OCR before August 16, 2013; and 3) never served the United States attorney's office as required by Rule 4(i)(1)(A). ( Id. at 5). "A federal court is without personal jurisdiction unless the defendant has been served in accordance with [Rule] 4." Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986). Rule 4 "should be liberally construed to uphold service so long as a party receives sufficient notice of the complaint." Chan v. Soc'y Expeditions, Inc., 39 F.3d 1398, 1404 (9th Cir. 1994). However, actual notice does not "provide personal jurisdiction without substantial compliance with Rule 4.'" Travelers Cas. and Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (quoting Benny, 799 F.2d at 492). To serve a United States agency, a party must serve the United States and send a copy of the summons and complaint to the agency. Fed.R.Civ.P. 4(i)(2). To serve the United States, the relevant requirements are that a party must:
(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought-or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk-or (ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office; [and] (B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.
Plaintiff has failed to meet the requirements of Rule 4(i). Plaintiff has not sent a copy of the summons and complaint to: 1) OCR (Doc. 45 at 6 (3300 North Central, Suite 690, Phoenix, AZ 85012 is the address of the Equal Employment Opportunity Commission which is not a party to this action)); or 2) the United States attorney for the district where the action is brought ( id. at 7 (she instead sent a copy to a Washington D.C. address for the U.S. Department of Justice, Civil Rights Division)). Plaintiff has not achieved substantial compliance with Rule 4 in order to provide the Court with personal jurisdiction over OCR.
A district court has the discretion to quash the insufficient service of process and order the plaintiff to re-serve the defendant. Stevens v. Sec. P. Nat'l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976). However, the Court already granted Plaintiff an additional 30 days to serve OCR. Pursuant to the Court's Order on July 10, 2013, Plaintiff had until August 16, 2013 to accomplish service or her case would be dismissed without further hearings. (Doc. 44). Almost five additional months have passed since that deadline and still Plaintiff has not served OCR. Therefore, the Court will grant OCR's motion to dismiss for insufficient service of process under Rule 12(b)(5).
B. Lack of Subject Matter Jurisdiction
To the extent that Plaintiff raises a claim under the Administrative Procedures Act ("APA") seeking judicial review of OCR's dismissal of her administrative complaints, OCR also alternatively claims that the Court lacks subject matter jurisdiction. ( Id. at 9-10). "Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in court are subject to judicial review." 5 U.S.C. § 704 (2006).
There is no statute which makes OCR's dismissal of an administrative complaint subject to judicial review. Additionally, Plaintiff had "[an]other adequate remedy" by pursuing a claim of discrimination directly against the alleged offender, Gateway Community College ("Gateway"). See, e.g., Cannon v. University of Chicago, 441 U.S. 677, 699-703 ("both Title VI and Title IX created a private right of action for the victims of illegal discrimination"). In fact, Plaintiff did pursue such action by filing a complaint with the Court against Gateway. (Doc. 1; Doc. 4). Therefore, to the extent that Plaintiff seeks review of OCR's dismissal of her administrative complaints, that claim is dismissed for lack of subject matter jurisdiction under Rule 12(b)(1).
OCR also contends that the Court lacks subject matter jurisdiction over Plaintiff's tort claims, "because Plaintiff failed to timely present a claim to the agency under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. " (Doc. ...