United States District Court, District of Columbia
TERESITA A. CANUTO, Plaintiff,
JAMES MATTIS,  Secretary of Defense, et al., Defendants.
G. Sullivan United States District Judge.
Canuto, proceeding pro se, has filed suit against
two United States Army officers and various senior federal
officials (collectively “federal defendants”) and
the private entities DePauw HK Property Management
(“DePauw”), Cirrus Asset Management, Inc.
(“Cirrus”), and Bank of America, N.A.
(“Bank of America”). The gravamen of Ms.
Canuto's complaint is that members of the United States
armed forces have sexually assaulted her on a number of
occasions after infiltrating her home and using sleeping gas
to render her unconscious. She asserts various constitutional,
federal statutory, and state common law claims.
has filed a Motion to Quash Service and/or in the Alternative
Motion to Dismiss Pursuant to Rule 12(b)(5)
(“DePauw's Mot.”), ECF No. 5; Cirrus has
filed a Motion to Dismiss Plaintiff's Amended Complaint
for Lack of Personal Jurisdiction (“Cirrus'
Mot.”), ECF No. 11; and Bank of America has filed a
Motion to Dismiss the claims against it on statute of
limitations grounds (“BOA's Mot.”), ECF No.
Upon consideration of these motions, the responses and
replies thereto, the relevant law, and the entire record, the
Court GRANTS IN PART and DENIES IN
PART DePauw's motion; GRANTS
Cirrus' motion; and GRANTS Bank of
Canuto alleges that members of the United States armed
forces, assisted by “illegal foreigners” and
other civilians and acting under the direction of senior
military officers and senior federal officials, sexually
assaulted her on numerous occasions from October 2014 to the
present. Am. Compl., ECF No. 10 at 6-14, 16, 21-22,
67-69. She contends that the federal officials
orchestrated these attacks to punish her and her husband for
seeking an award under the National Vaccine Injury
Compensation Program, 42 U.S.C. §§ 300aa-10 et
seq., as compensation for their son's autism, which
they believe was caused by his receipt of certain
vaccinations. Id. at 16; see Canuto v. Sec'y
of HHS, 660 F. App'x 955 (Fed. Cir. 2016) (per
alleges that the assaults were first perpetrated in her
apartment unit in a Panorama City, California apartment
building that is managed by DePauw. Am. Compl., ECF No. 10 at
13, 21. In July 2016, she moved to a Northridge, California
apartment building managed by Cirrus, where she alleges that
the assaults have continued to occur. See Id. at 14,
22. In both locations, Ms. Canuto alleges that her assailants
have carried out the assaults by first cutting holes in the
ceiling to gain access to the apartment and then releasing
sleeping gas to put her into a “deep sleep, ”
leaving her defenseless against their attacks. Id.
at 7, 13, 21-22, 41. She contends that when she wakes in the
morning, she knows that she has been assaulted because she
has cuts and bruises on various parts of her body. See
Id. at 14, 21-35, 53-80. She also alleges that her
assailants frequently follow her when she is driving,
id. at 6-13, 21, 36, 39, and she alleges that they
have stolen various items from her apartment and car,
including medical and hospitalization records. Id.
at 12, 22, 37, 40-41. Ms. Canuto contends that she has a
history of having important documents and records stolen from
her, as, on some unspecified date in 2009, various documents
went missing from a safe deposit box that she had at a Bank
of America branch location in Panorama City, California.
Id. at 11, 40.
on these factual allegations, Ms. Canuto alleges that the
defendants have violated her Fourteenth Amendment due process
and equal protection rights, and she cites 18 U.S.C. §
242, 42 U.S.C. § 1981, and 42 U.S.C. § 1983 as
statutory bases for relief. Id. at 5-9, 20. She also
asserts various state common law claims. Id. at
15-16, 20. She seeks monetary damages, the return of the
items allegedly stolen from her, and the production of the
names of the persons who allegedly followed and assaulted her
and the names of the Bank of America employees who had access
to her safe deposit box. Id. at 41-42.
DePauw's Motion to Quash Service and/or Dismiss
moves to quash the service of process against it
“and/or in the alternative” to dismiss the claims
against it. DePauw's Mot., ECF No. 5 at 1. DePauw rests
its motion on two arguments. It argues that, per Federal Rule
of Civil Procedure 17(b), it is not an entity that is capable
of being sued, id. at 7-9, and, in any event, that
service of process as to it was deficient. Id. at
reasons that follow, the Court concludes that Ms. Canuto has
sued a suable entity--she has just misnamed that entity. Even
so, the Court concludes that service was deficient as to that
suable entity, so the Court will quash the attempted service
and permit Ms. Canuto another opportunity to serve the
properly named suable entity.
Capacity and Misnomer
Court will analyze the capacity issue first. See Tri-Med
Fin. Co. v. Nat'l Century Fin. Enters., Inc., Nos.
98-3617, 99-3062, 2000 WL 282445, at *4 (6th Cir. Mar. 6,
2000) (describing capacity as a “threshold
issue”). Federal Rule of Civil Procedure 17(b) governs
capacity. In relevant part, it provides:
Capacity to sue or be sued is determined as follows:
(1) for an individual who is not acting in a representative
capacity, by the law of the individual's domicile;
(2) for a corporation, by the law under which it was
(3) for all other parties, by the law of the state where the
court is located, except that:
(A) a partnership or other unincorporated association with no
such capacity under that state's law may sue or be sued
in its common name to enforce a substantive right existing
under the United States Constitution or laws . . . .
Fed. R. Civ. P. 17(b). DePauw contends that because Ms.
Canuto does not allege that it is an incorporated entity, its
capacity to be sued is governed by the law of the District of
Columbia per Federal Rule 17(b)(3). DePauw's Mot., ECF
No. 5 at 7-8. It then argues that it is not a suable entity
under the relevant Rule 17(b)(3) analysis. See Id.
Court concludes, however, that it need not address the
doctrinal niceties of the Rule 17(b)(3) analysis that concern
the suability of a non-individual, non-corporate party
because, in the Court's view, there is not really a
capacity problem here. Rather, Ms. Canuto has brought suit
against a suable California corporation--Woodman-Sylvan
Properties, Inc.--but she has mistakenly named that
corporation “DePauw HK Property Management” in
Google search for “DePauw HK Property Management”
reveals, on the first page of responsive hits, a link to the
website of an entity called “Woodman Sylvan
Properties.” See “DePauw HK Property
Management, ” Google Search,
(last visited Aug. 1, 2017). The website of Woodman Sylvan
Properties, in turn, explains that its properties “were
managed and developed under the ownership of H.K.
DePauw” and that the business is “still family
owned.” See Woodman Sylvan Properties
“About Us” Page,
http://www.woodmansylvan.com/aboutus (last visited Aug. 1,
2017). The address listed for Woodman Sylvan Properties on
its website is 12514 Moorpark Street, Studio City, California
91604, see id.--the exact address Ms. Canuto
provided for DePauw in her complaint, see Am.
Compl., ECF No. 10 at 4, and the exact address at which she
attempted to serve DePauw by mail. See DePauw's
Mot., ECF No. 5 at 3. A search of the California Secretary of
State's California Business Search Database for a
corporation named “Woodman Sylvan Properties”
reveals a Statement of Information for a corporation named
“Woodman-Sylvan Properties, Inc.” See
“Woodman Sylvan Properties, ” California
Business Search, https://businesssearch.sos.ca.gov/
(last visited Aug. 1, 2017).The address of that corporation is
12514 Moorpark Street, Studio City, California 91604; its
agent for service of process, who receives service of process
at the corporation's Studio City address, is a person
named Elizabeth DePauw Jacobson; and all key officers and all
directors of the corporation share a common name of DePauw.
See Statement of Information, Filed with California
Secretary of State on July 25, 2016.
Canuto is clearly suing the corporate entity Woodman-Sylvan
Properties even though she has named “DePauw HK
Property Management” as a defendant in her complaint.
The issue thus most squarely before the Court is “not
one of capacity to be sued, but merely one of mistaken
identity.” Montalvo v. Tower Life Bldg., 426
F.2d 1135, 1146 (5th Cir. 1970) (holding that misnomer, not
capacity to be sued, was the relevant issue when a building,
rather than the corporation that owned the building, was
named as the defendant in a complaint). Because there is no
doubt concerning the suability of a California corporation,
see Fed.R.Civ.P. 17(b)(2); Cal. Corp. Code §
105, there is a suable entity here: Woodman-Sylvan
the Court's duty to grant leave to amend a complaint
“when justice so requires, ” Fed.R.Civ.P.
15(a)(2), and its authority to grant that leave sua
sponte, e.g., Town of Islip v. Datre,
No. 16-2156, 2017 WL 1157188, at *25 (E.D.N.Y. Mar. 28,
2017), the Court will permit Ms. Canuto leave to amend her
complaint to replace defendant “DePauw HK Property
Management” with defendant “Woodman-Sylvan
Service of Process
that Woodman-Sylvan Properties were standing in the shoes of
DePauw, there is still a service of process problem as to
that corporate defendant.
to Federal Rule of Civil Procedure 4(h)(1) a corporation must
(A) in the manner prescribed by Rule 4(e)(1) for serving an
(B) by delivering a copy of the summons and of the complaint
to an officer, a managing or general agent, or any other
agent authorized by appointment or by law to receive service
of process and--if the agent is one authorized by statute and
the statute so requires--by also mailing a copy to the
defendant . . . .
Fed. R. Civ. P. 4(h)(1). Here, Ms. Canuto attempted to serve
DePauw/Woodman-Sylvan Properties by delivering the summons
and the complaint by certified mail. See Certified
Mail Receipt, ECF No. 6 at 2. Service by mail is deficient
under Federal Rule 4(h)(1)(B). Wesenberg v. New Orleans
Airport Motel Assocs. TRS, LLC, No. 14-1632, 2015 WL
5599012, at *2 (E.D. La. Sept. 22, 2015) (“Courts have
consistently held . . . that Rule 4(h)(1)(B)'s delivery
requirement refers to personal service, not service by
mail.”). That leaves Ms. Canuto to rely upon Federal
Rule 4(h)(1)(A), which, as explained above, triggers Federal
Rule 4(e)(1) permits service by “following state law
for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is
located or where service is made.” Fed.R.Civ.P.
4(e)(1). The relevant state law of California (the state
“where service is made”) and of the District of
Columbia (the state where this District Court is located) is
the state law “authorizing service of process on a
corporation, not the [law] authorizing service on an
individual.” James v. Booz-Allen & Hamilton,
Inc., 206 F.R.D. 15, 17 (D.D.C. 2002).
concerns service of process on DePauw/Woodman-Sylvan
Properties pursuant to California law, there are two
deficiencies with Ms. Canuto's attempted service of
process here. First, California law permits service by mail,
but service by mail requires delivery of two copies of a
statutorily-specified notice and acknowledgement form and
“a return envelope, postage prepaid, addressed to the
sender” along with the summons and the complaint.
See Cal. Civ. Proc. Code §
415.30. Ms. Canuto has not demonstrated compliance
with the notice and acknowledgement form and return envelope
requirements. Second, there are four categories of persons
through whom a corporation may be served: (1) the person
designated as an agent for service of process; (2) certain
statutorily-specified officers and agents of the corporation;
(3) if the corporation is a bank, a cashier or assistant
cashier; or (4) in certain circumstances, the California
Secretary of State. Cal. Civ. Proc. Code § 416.10. Here,
Emmelene A. Pableo received the summons and the complaint
that Ms. Canuto sent via certified mail. See Decl.
of Emmelene A. Pableo, ECF No. 5-2 ¶ 3. ...