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Canuto v. Mattis

United States District Court, District of Columbia

August 10, 2017

JAMES MATTIS, [1] Secretary of Defense, et al., Defendants.


          Emmet G. Sullivan United States District Judge.

         Teresita 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.[2] She asserts various constitutional, federal statutory, and state common law claims.

         DePauw 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. 16.[3] 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 America's motion.

         I. Background[4]

         Ms. 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.[5] 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 curiam).

         She 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.

         Based 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.

         II. Analysis

         A. DePauw's Motion to Quash Service and/or Dismiss

         DePauw 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 4-7.

         For the 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.

         1. Capacity and Misnomer

         The 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 organized; and
(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. at 8-9.

         The 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 her complaint.

         A 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,Ჯ辮詞껜븱꧚臩麞 (last visited Aug. 1, 2017).[6] 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, (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, (last visited Aug. 1, 2017).[7]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.

         Ms. 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 Properties.

         Given 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 Properties, Inc.”

         2. Service of Process

         Assuming that Woodman-Sylvan Properties were standing in the shoes of DePauw, there is still a service of process problem as to that corporate defendant.

         Pursuant to Federal Rule of Civil Procedure 4(h)(1) a corporation must be served:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
(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).

         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).

         As 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.[8] 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;[9] (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. ...

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