United States District Court, D. Montana, Missoula Division
FINDINGS AND RECOMMENDATION
Jeremiah C. Lynch United States Magistrate Judge
Tully Sanem, appearing pro se, identified one of the
Defendants as “Title IV-D Collection Franchise Child
Support Enforcement Division”. That Defendant is the
Child Support Enforcement Division (“CSED”) of
the Montana Department of Public Heath and Human Services.
Sanem served his complaint on CSED at the street address for
its local office in Missoula, Montana. (Doc. 3 at 2.)
CSED's Rule 12(b)(6) Motion to Dismiss
legal claims against CSED in his First CAUSE OF ACTION
through his Eleventh CAUSE OF ACTION are each expressly
advanced pursuant to 42 U.S.C. § 1983. (Doc. 1 at
¶¶ 25-74.) In each claim he alleges CSED violated
filed a Fed.R.Civ.P. 12(b)(6) motion to dismiss Sanem's
claims under 42 U.S.C. § 1983. For the reasons stated,
the Court recommends the motion be granted.
motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to
state a claim upon which relief can be granted “tests
the legal sufficiency of a claim.” Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). A
dismissal for failure to state a claim under Rule 12(b)(6) is
proper if there is a “lack of a cognizable legal theory
or the absence of sufficient facts alleged under a cognizable
legal theory.” Balistreri v. Pacifica Police
Department, 901 F.2d 696, 699 (9th Cir.
referenced statute provision at 42 U.S.C. § 1983 permits
claims under federal law against any “person”
who, while acting under color of state law, deprives the
plaintiff of a federal right secured by the Constitution or
laws of the United States. Kirtley v. Rainey, 326
F.3d 1088, 1092 (9th Cir. 2003). But it is well
established that departments and agencies of a State are not
“persons” under section 1983. Will v.
Michigan Dep't of State Police, 491 U.S. 58, 65, 71
(1989) and Maldonado v. Harris, 370 F.3d 945, 951
(9th Cir. 2004).
CSED is a division of a department of the State of Montana,
IT IS HEREBY RECOMMENDED that CSED's motion to dismiss
Sanem's causes of to the extent they are advanced against
CSED's Rule 12(b)(5) Motion to Dismiss - Insufficient
Service of Process
complaint asserts three additional causes of action in his
Twelfth CAUSE OF ACTION through his Fourteenth CAUSE OF
ACTION which do not expressly rely upon 42 U.S.C. §
1983. But CSED additionally moves to dismiss this action for
lack of service on the ground that Sanem did not served his
complaint and summons on CSED's “chief executive
officer” as required by Fed.R.Civ.P. 4(j)(2)(A). The
Court construes CSED's motion as asserting the defense of
insufficient service of process under Fed.R.Civ.P. 12(b)(5).
defendant moves to dismiss under Rule 12(b)(5), the plaintiff
bears the burden of establishing the validity of the service
of process. Carr v. International Game Technology,
770 F.Supp.2d 1080, 1100 (D. Nev. 2011) (citing
Brockmeyer v. May, 383 F.3d 798, 801 (9th
response to CSED's motion, Sanem filed evidentiary
documents indicating he served his complaint and summons upon
Steve Bullock, the Governor of Montana. Sanem contends
Governor Bullock is the “chief executive officer”
referenced in Rule 4(j)(2)(A). But there exists no evidence
before the Court establishing that Governor Bullock, as
opposed to the Director of the officer of Defendant CSED.
also served a copy of his complaint on Tim Fox, the Montana
Attorney General. (Docs. 14 at 3, and 14-1.) Rule 4(j)(2)(B)
permits service upon a state governmental entity by serving
it “in the manner prescribed by that state's
law[.]” Montana law permits service upon the State
“by delivering a copy of the summons and complaint to
the attorney general and any other party prescribed by
statute.” Mont. R. Civ. P. 4(1). Although Sanem states
he served a copy of his complaint on Tim Fox, he does not
establish that he served a summons on Fox. Thus, his service
upon Fox is deficient.
12(b)(5) motion to dismiss for insufficient service of
process affords the court the option of quashing the present
service of process, as opposed to dismissing the case, to
afford the plaintiff an opportunity to properly re-serve the
defendant. Martinez v. Citi Mortgage, Inc., 347
F.Supp.3d 677, 686-87 (D. New Mexico 2018) (citing Chan
v. Society Expeditions, Inc., 39 F.3d 1398, 1404
(9thCir. 1994) (holding ...