Canuto v. Carter , 273 F. Supp. 3d 127 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
TERESITA A. CANUTO, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-2282 (EGS)
)
JAMES MATTIS,1 Secretary of )
Defense, et al., )
)
Defendants. )
________________________________)
MEMORANDUM OPINION
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
1
Public officers sued in their official capacity who have ceased
to hold office since the commencement of this action have been
automatically substituted with their successors under Federal
Rule of Civil Procedure 25(d).
2 Ms. Canuto has filed a series of lawsuits based on nearly
identical factual allegations in the United States Court of
Federal Claims. Each of her complaints there was dismissed. See
Canuto v. United States, No. 15-410C, 2015 WL 1926375 (Fed. Cl.
Apr. 27, 2015); Canuto v. United States, No. 15-821C, 2015 WL
8481577 (Fed. Cl. Dec. 9, 2015); Canuto v. United States, No.
1
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.
16-414C, 2016 WL 8710473 (Fed. Cl. May 4, 2016). The United
States Court of Appeals for the Federal Circuit affirmed each of
those dismissals. See Canuto v. United States, 615 F. App’x 951
(Fed. Cir. 2015); Canuto v. United States, 651 F. App’x 996
(Fed. Cir. 2016) (per curiam); Canuto v. United States, 673 F.
App’x 982 (Fed. Cir. 2016) (per curiam).
3 The federal defendants have yet to file a responsive pleading
or a motion to dismiss because they have yet to be served. The
Court will resolve the now-pending motions to dismiss and, in a
separate Order, will direct Ms. Canuto to serve the federal
defendants and file proof of that service by a date certain. If
she fails to provide proof of service by that date or fails to
provide an adequate written explanation as to why service has
not been completed, the Court will dismiss the claims against
the federal defendants without prejudice. See Fed. R. Civ. P.
4(m).
2
I. Background4
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
4 The Court GRANTS Ms. Canuto’s Motion of Plaintiff to Make an
Amendment Due to Error Noticed in the Filed Amended Complaint,
ECF No. 13, and will consider the operative complaint to be her
amended complaint, see Am. Compl., ECF No. 10, further amended
by the four very minor changes that she seeks to make to her
amended complaint by means of her Motion of Plaintiff to Make an
Amendment Due to Error Noticed in the Filed Amended Complaint.
5 Page-number citations to documents the parties have filed refer
to the page numbers that the Court’s electronic filing system
assigns.
3
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,
4
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
5
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
6
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,
https://www.google.com/search?q=DePauw+HK+Property+Management
(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, 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
6 The Court may take judicial notice of the information provided
on the websites that it has consulted. See Nat’l Grange of the
Order of Patrons of Husbandry v. Cal. State Grange, 182 F. Supp.
3d 1065, 1082 n.5 (E.D. Cal. 2016).
7
“Woodman-Sylvan Properties, Inc.” See “Woodman Sylvan
Properties,” California Business Search,
https://businesssearch.sos.ca.gov/ (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
7 The Court may take judicial notice of filings with the
California Secretary of State. See Nat’l Grange of the Order of
Patrons of Husbandry v. Cal. State Grange, 182 F. Supp. 3d 1065,
1075 n.3 (E.D. Cal. 2016).
8
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
9
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
10
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
8 Section 415.30 states in relevant part:
(a) A summons may be served by mail as provided
in this section. A copy of the summons and of
the complaint shall be mailed (by first-class
mail or airmail, postage prepaid) to the
person to be served, together with two copies
of the notice and acknowledgement provided for
in subdivision (b) and a return envelope,
postage prepaid, addressed to the sender.
(b) The notice specified in subdivision (a)
shall be in substantially the following form:
(Title of court and case, with action number,
to be inserted by the sender prior to mailing)
NOTICE
To: (Here state the name of the person to be
served.)
This summons is served pursuant to Section
415.30 of the California Code of Civil
Procedure. Failure to complete this form and
return it to the sender within 20 days may
subject you (or the party on whose behalf you
are being served) to liability for the payment
of any expenses incurred in serving a summons
upon you in any other manner permitted by law.
If you are served on behalf of a corporation,
unincorporated association (including a
partnership), or other entity, this form must
be signed in the name of such entity by you or
by a person authorized to receive service of
process on behalf of such entity. In all other
cases, this form must be signed by you
personally or by a person authorized by you to
acknowledge receipt of summons. Section 415.30
provides that this summons is deemed served on
11
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.
the date of execution of an acknowledgment of
receipt of summons.
_____________________________
Signature of Sender
ACKNOWLEDGMENT OF RECEIPT OF SUMMONS
This acknowledges receipt on (insert date) of
a copy of the summons and of the complaint at
(insert address).
Date:____________________
(Date this acknowledgment is executed)
_____________________________
Signature of person
acknowledging receipt,
with title if
acknowledgment is made on
behalf of another person
9 As indicated above, that person is Elizabeth DePauw Jacobson.
See Statement of Information, Filed with California Secretary of
State on July 25, 2016.
12
Pableo, ECF No. 5-2 ¶ 3. Although Ms. Pableo works at the
address of Woodman-Sylvan Properties, see id. ¶ 5, she does not
appear to be a person who readily falls within one of the four
categories of persons through whom that corporation may be
served. Accordingly, service of that corporation was deficient
under California law.
As concerns service of process on DePauw/Woodman-Sylvan
Properties pursuant to District of Columbia law, there are also
deficiencies rendering Ms. Canuto’s attempted service improper.
First, District of Columbia Superior Court Rule of Civil
Procedure 4(h)(1)(B) permits service of a corporation by
delivering the summons and 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,” D.C.
Super. Ct. R. Civ. P. 4(h)(1)(B), but, based on her declaration,
Ms. Pableo——the person to whom the summons and the complaint
were delivered——does not appear to fit any of those
designations. See Decl. of Emmelene A. Pableo, ECF No. 5-2.
District of Columbia Superior Court Rule of Civil Procedure
4(h)(1)(A) alternatively permits a corporation to be served “in
the manner prescribed by [District of Columbia Superior Court
Rule of Civil Procedure] 4(e)(1) for serving an individual.”
D.C. Super. Ct. R. Civ. P. 4(h)(1)(A). That Rule, in turn,
permits service by “following District of Columbia law, or the
13
state law for serving a summons in an action brought in courts
of general jurisdiction in the state where service is made.”
D.C. Super. Ct. R. Civ. P. 4(e)(1). Service by mail under the
law of California——“the state where service is made”——was
deficient for the reasons articulated in the immediately
preceding paragraph. As to District of Columbia law, service by
mail can be achieved by sending the summons and the complaint by
first-class mail, but that method of service requires sending
two copies of a notice and acknowledgement form and “a return
envelope, postage prepaid, addressed to the sender,” D.C. Super.
Ct. R. Civ. P. 4(c)(5), and, again, Ms. Canuto has not
demonstrated compliance with such requirements. Service can also
be accomplished by mailing a copy of the summons and the
complaint “to the person to be served by registered or certified
mail, return receipt requested.” D.C. Super. Ct. R. Civ. P.
4(c)(4). Ms. Canuto has not demonstrated that her certified
mailing satisfied the “return receipt requested” requirement,
see Certified Mail Receipt, ECF No. 6 at 2 (showing unchecked
“Return Receipt” boxes), and, additionally, “the person to be
served by registered or certified mail” is Woodman-Sylvan
Properties’ designated agent for service of process, Elizabeth
DePauw Jacobson, not Ms. Pableo. See Ilaw v. Dep’t of Justice,
309 F.R.D. 101, 105 & n.3 (D.D.C. 2015) (holding that service as
to a corporate entity was improper under District of Columbia
14
law when the summons and the complaint were mailed to the
corporate entity but were signed for by someone who was not an
officer or registered agent of that entity).10
Thus service was not proper under federal, District of
Columbia, or California law as to the suable but misnamed
corporate defendant Woodman-Sylvan Properties. “Although the
Court has the authority to dismiss an action outright on the
basis of insufficient service of process, the court can, in its
sound discretion, direct that service be effected within a
10Although service was deficient under District of Columbia law
for the reasons articulated, D.C. Code § 13-334(a) does not pose
a service of process obstacle here, contrary to DePauw/Woodman-
Sylvan Properties’ argument otherwise. See DePauw’s Mot., ECF
No. 5 at 6-7. Section 13-334(a) only mandates that a corporation
be served in the District of Columbia when that corporation
actually transacts some business in the District of Columbia.
See D.C. Code § 13-334(a) (“In an action against a foreign
corporation doing business in the District . . . .”) (emphasis
added); cf. Gorman v. Ameritrade Holding Corp., 293 F.3d 506,
514 (D.C. Cir. 2002) (“Where the basis for obtaining
jurisdiction over a foreign corporation is § 13-334(a), as it is
here, a plaintiff who serves the corporation by mail outside the
District is foreclosed from benefitting from [the statute’s]
jurisdictional protection.”) (internal quotation marks omitted).
Section 13-334(a) does not present a service of process barrier
where DePauw/Woodman-Sylvan Properties is concerned, as it does
not appear that that corporation conducts any business in the
District of Columbia. DePauw/Woodman-Sylvan Properties’ lack of
contact with the District of Columbia might constitute a
personal jurisdiction problem, but DePauw/Woodman-Sylvan
Properties did not move to dismiss on that basis, and the Court
is foreclosed from addressing that issue sua sponte. Kapar v.
Kuwait Airways Corp., 845 F.2d 1100, 1105 (D.C. Cir. 1988)
(“[B]ecause personal jurisdiction may be conferred by consent of
the parties, expressly or by failure to object, a court may not
sua sponte dismiss for want of personal jurisdiction . . . .”)
(internal quotation marks omitted).
15
specified time, quashing the defective service without
dismissing the case.” Estate of Scherban v. Suntrust Bank, No.
15-1966, 2016 WL 777913, at *4 (D.D.C. Feb. 26, 2016) (internal
quotation marks omitted). “Dismissal is generally inappropriate
when there exists a reasonable prospect that service may yet be
obtained.” Angelich v. MedTrust, LLC, 910 F. Supp. 2d 128, 132
(D.D.C. 2012). Further, quashing rather than dismissing is all
the more reasonable where a pro se plaintiff is concerned, as a
pro se plaintiff deserves “some leniency in applying the rules
for effective service of process.” Roland v. Branch Banking &
Trust Corp., 149 F. Supp. 3d 61, 66 (D.D.C. 2015).
Accordingly, the Court GRANTS DePauw’s motion to quash
service of process and DENIES its motion to dismiss the claims
against it. Ms. Canuto shall have 30 days from the date of this
Memorandum Opinion and its accompanying Order (1) to amend her
complaint to replace defendant “DePauw HK Property Management”
with defendant “Woodman-Sylvan Properties, Inc.,” and (2) to
effect proper service on Woodman-Sylvan Properties.
16
B. Cirrus’ Motion to Dismiss11
Cirrus moves to dismiss the claims against it for lack of
personal jurisdiction. See Cirrus’ Mot., ECF No. 11.12 For the
reasons that follow, the Court concludes that it lacks personal
jurisdiction over Cirrus, and, accordingly, its motion will be
granted.13
Under Federal Rule of Civil Procedure 12(b)(2), the
plaintiff bears the burden of establishing a factual basis for
personal jurisdiction. Okolie v. Future Servs. Gen. Trading &
Contracting Co., W.L.L., 102 F. Supp. 3d 172, 175 (D.D.C. 2015)
(citing Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 456 (D.C.
Cir. 1990)). To meet that burden, the plaintiff “‘must allege
specific acts connecting [the] defendant with the forum.’” Id.
(quoting Second Amendment Found. v. U.S. Conference of Mayors,
274 F.3d 521, 524 (D.C. Cir. 2001)). When making a personal
jurisdiction determination, a court need not treat all of the
11 Because amendment of the complaint to correct misnomer as to
one defendant will not change the analysis applicable as to the
now-pending motions to dismiss filed by Cirrus and Bank of
America, the Court will proceed to rule on those motions.
12 Cirrus also purports to reserve its right to dismiss for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule 12(b)(6) in the event that dismissal is
not granted as to it on personal jurisdiction grounds. Cirrus’
Mem. in Supp. of Mot. to Dismiss Am. Compl. for Lack of Personal
Jurisdiction (“Cirrus’ Mem. Supp.”), ECF No. 11 at 10 n.3.
13 Cirrus’ earlier-filed motion to dismiss——which was filed prior
to Ms. Canuto’s filing of her amended complaint, see Cirrus’
Mot. to Dismiss Pl.’s Compl. for Lack of Personal Jurisdiction,
ECF No. 8——is DENIED AS MOOT.
17
plaintiff’s allegations as true. Bricklayers & Trowel Trades
Int’l Pension Fund v. Valley Concrete, Inc., No. 16-1684, 2017
WL 2455028, at *2 (D.D.C. June 6, 2017). Instead, the court may
“receive and weigh affidavits and any other relevant matter to
assist it in determining the jurisdictional facts.” Id.
(internal quotation marks omitted).
Assessing whether a court may exercise personal
jurisdiction over a defendant “typically implicates a state’s
jurisdictional statute or rule.” Alkanani v. Aegis Def. Servs.,
LLC, 976 F. Supp. 2d 13, 21 (D.D.C. 2014) (internal quotation
marks and alteration omitted). That is the case as concerns
Cirrus, so this Federal District Court has personal jurisdiction
over Cirrus only if a District of Columbia court could exercise
personal jurisdiction over Cirrus. See Fed. R. Civ. P.
4(k)(1)(A).14 “Two requirements must be met for a District of
14To the extent that Ms. Canuto means to assert federal
statutory claims against Cirrus, see Am. Compl., ECF No. 10 at
5-9, 20; Pl.’s Opp. to Cirrus’ Mot., ECF No. 18 at 1, none of
the statutes that she cites contemplates nationwide service of
process. See Locke v. FedEx Freight, Inc., No. 12-708, 2012 WL
7783085, at *4 (D. Colo. Aug. 31, 2012) (explaining that 42
U.S.C. § 1981 and 42 U.S.C. § 1983 do not confer nationwide
service of process); cf. McCray v. Holder, 391 F. App’x 887, 888
(D.C. Cir. 2010) (per curiam) (explaining that there is no
private right of action under 18 U.S.C. § 242). Accordingly,
this Court’s exercise of personal jurisdiction is not
“authorized by a federal statute,” see Fed. R. Civ. P.
4(k)(1)(C), and instead is limited to the exercise of personal
jurisdiction of a court of general jurisdiction in the District
of Columbia. See Fed. R. Civ. P. 4(k)(1)(A).
18
Columbia court to exercise personal jurisdiction over a
defendant.” Bradley v. DeWine, 55 F. Supp. 3d 31, 39 (D.D.C.
2014). “First, the defendant must qualify for either general or
specific jurisdiction under the relevant District of Columbia
statutes.” Id. “Second, the exercise of jurisdiction over the
defendant must comply with the Due Process Clause of the
Fourteenth Amendment.” Id. at 39-40. General jurisdiction
permits the Court to adjudicate “any and all claims” brought
against the defendant. Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 919 (2011). Specific jurisdiction, on the
other hand, “is confined to adjudication of issues deriving
from, or connected with, the very controversy that establishes
jurisdiction.” Id. (internal quotation marks omitted).
For the reasons that follow, the Court can exercise neither
general nor specific jurisdiction over Cirrus.
1. General Jurisdiction
There are two District of Columbia statutes that confer
general jurisdiction. King v. Caliber Home Loans, Inc., 210 F.
Supp. 3d 130, 136 (D.D.C. 2016). One, D.C. Code § 13-422, states
that a “District of Columbia court may exercise personal
jurisdiction over a person domiciled in, organized under the
laws of, or maintaining his or its principles place of business
in, the District of Columbia as to any claim of relief.” D.C.
Code § 13-422.
19
Here, Ms. Canuto has not alleged any facts that could
satisfy any of these criteria. See generally Am. Compl., ECF No.
10; Pl.’s Opp. to Cirrus’ Mot., ECF No. 18; Pl.’s Surreply to
Cirrus’ Reply, ECF No. 26.15 To the contrary, Cirrus’ President
has averred that Cirrus is a corporation that is organized under
the laws of California and that maintains its principal place of
business in California. Aff. of Steve Heimler, ECF No. 11-2 ¶¶
2-3. Accordingly, the Court is unable to exercise general
jurisdiction over Cirrus pursuant to § 13-422.
The other general jurisdiction statute, D.C. Code § 13-334,
permits the exercise of personal jurisdiction over “a foreign
corporation doing business in the District.” D.C. Code § 13-
334(a). The reach of this “doing business” general jurisdiction
under § 13-334(a) is co-extensive with the reach of general
jurisdiction under the Due Process Clause. Day v. Cornèr Bank
(Overseas) Ltd., 789 F. Supp. 2d 150, 156 (D.D.C. 2011). Thus
this Court can exercise “doing business” general jurisdiction
over Cirrus only if its contacts with the District of Columbia
“are so ‘continuous and systematic’ as to render [it]
15Cirrus has moved to strike Ms. Canuto’s surreply. See Cirrus’
Mot. to Strike, ECF No. 28. In response, Ms. Canuto has filed a
motion to defend her surreply. See Pl.’s Mot. to Defend, ECF No.
31. In view of Ms. Canuto’s pro se status, the Court DENIES
Cirrus’ motion to strike and GRANTS Ms. Canuto’s motion to
defend. See Buaiz v. United States, 471 F. Supp. 2d 129, 133
(D.D.C. 2007) (accepting and considering a plaintiff’s surreply
because that plaintiff was proceeding pro se).
20
essentially at home” in the District. Goodyear, 564 U.S. at 919.
The Court cannot exercise “doing business” general
jurisdiction over Cirrus because Ms. Canuto has not alleged that
Cirrus has had any contacts with the District of Columbia, let
alone continuous and systematic contacts. See generally Am.
Compl., ECF No. 10; Pl.’s Opp. to Cirrus’ Mot., ECF No. 18;
Pl.’s Surreply to Cirrus’ Reply, ECF No. 26. Again, to the
contrary, Cirrus’ President has averred that Cirrus has never
managed any properties in the District, has no offices in the
District, has never conducted any business in the District, and
does not solicit business or derive any revenue from goods or
services rendered in the District. Aff. of Steve Heimler, ECF
No. 11-2 ¶¶ 8-11. Cirrus is certainly not “at home” in the
District of Columbia; it is not even a frequent guest.
Accordingly, the Court is unable to exercise general
jurisdiction over Cirrus pursuant to § 13-334(a).
Accordingly, this Court cannot exercise general
jurisdiction over Cirrus.
2. Specific Jurisdiction
D.C. Code § 13-423 authorizes the exercise of specific
jurisdiction under certain enumerated circumstances, including
when an entity transacts any business in the District; contracts
to supply services in the District; causes tortious injury in
the District; or has an interest in, uses, or possesses real
21
property in the District. D.C. Code § 13-423(a)(1)-(5). As
explained above, Ms. Canuto has not alleged that Cirrus has had
any contacts with the District of Columbia, see generally Am.
Compl., ECF No. 10; Pl.’s Opp. to Cirrus’ Mot., ECF No. 18;
Pl.’s Surreply to Cirrus’ Reply, ECF No. 26, and Cirrus’
President’s affidavit confirms that Cirrus has absolutely no
connection of any sort to the District of Columbia, let alone
any connection that constitutes the conduct listed in § 13-
423(a). See generally Aff. of Steve Heimler, ECF No. 11-2.
Moreover, even if Ms. Canuto were able to establish contact
between the District of Columbia and Cirrus, she “has not shown
that [her] claims ‘aris[e] from acts enumerated in’ the
District’s long-arm statute or that the exercise of jurisdiction
would satisfy due process.” Capital Bank Int’l Ltd. v.
Citigroup, Inc., 276 F. Supp. 2d 72, 77 (D.D.C. 2003) (citing
D.C. Code § 13-423(b); Gorman, 293 F.3d at 509; Koteen v.
Bermuda Cablevision, Ltd., 913 F.2d 973, 974-75 (D.C. Cir.
1990)). Thus, this Court cannot exercise specific jurisdiction
over Cirrus.16
16Ms. Canuto’s arguments to the contrary are unavailing. Her
assertion that the Court has federal question jurisdiction does
not solve the personal jurisdiction problem where Cirrus is
concerned. See Pl.’s Opp. to Cirrus’ Mot., ECF No. 18 at 1.
Federal question jurisdiction is a form of subject matter
jurisdiction and whether it exists does not change the Court’s
personal jurisdiction analysis in this case. See Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 577 (1999) (“Jurisdiction to
22
Accordingly, the Court is unable to exercise personal
jurisdiction over Cirrus. Thus the Court GRANTS Cirrus’ motion
to dismiss for lack of personal jurisdiction.
C. Bank of America’s Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Bank
of America moves to dismiss the claims against it on statute of
limitations grounds. See Bank of America’s Mem. in Supp. of Mot.
to Dismiss (“BOA’s Mem. Supp.”), ECF No. 16-1 at 1. Bank of
America contends that the only allegations concerning it in Ms.
Canuto’s complaint relate to certain documents——namely, a
passport, divorce papers, a marriage contract, a certificate of
employment, and a business registration form——that at some point
in 2009 went missing from the safe deposit box that she had at a
Bank of America branch in Panorama City, California. Id. at 1-2,
5-6; Am. Compl., ECF No. 10 at 11. Thus Bank of America contends
that the only claim against it is one for state law breach of
contract, apparently on the theory that the safe deposit box
rental agreement was purportedly breached when the documents
resolve [a] case[ ] on the merits requires both authority over
the category of claim in suit (subject-matter jurisdiction) and
authority over the parties (personal jurisdiction) . . . .”).
Additionally, her conclusory argument that this Court has “long-
arm jurisdiction,” see Pl.’s Opp. to Cirrus’ Mot., ECF No. 18 at
2, fails because without any connections between Cirrus and the
District of Columbia, the Court cannot exercise specific
jurisdiction over Cirrus pursuant to the applicable District of
Columbia long-arm statute, as explained above.
23
went missing. See BOA’s Mem. Supp., ECF No. 16-1 at 5-6. Bank of
America asserts that that breach of contract claim——which it
contends accrued in 2009——is barred by the applicable three-year
District of Columbia limitations period. Id.
Ms. Canuto has filed three separate responses to Bank of
America’s motion. See Pl.’s Opp. to BOA’s Mot., ECF No. 23;
Pl.’s Surreply to BOA’s Reply, ECF No. 29; Pl.’s Notice to the
Court, ECF No. 33. None of those responses addresses the statute
of limitations issue. Instead, Ms. Canuto’s responses largely
focus on her contention that Bank of America has defaulted
because it filed its motion to dismiss more than 21 days after
it was served. See Pl.’s Opp. to BOA’s Mot., ECF No. 23 at 1-2;
Pl.’s Surreply to BOA’s Reply, ECF No. 29 at 1-2.
For the reasons that follow, the Court concludes that Bank
of America’s motion to dismiss was timely filed and that the
claims Ms. Canuto asserts against it are barred by the
applicable limitations periods.
1. Timeliness
“The issue of how long a defendant may wait before moving
to dismiss under Federal Rule of Civil Procedure 12(b) is
surprisingly confusing and the courts disagree considerably in
this respect.” Luv N’ Care, Ltd. v. Babelito, S.A., 306 F. Supp.
2d 468, 472 (S.D.N.Y. 2004). Some courts have held that “under
the plain language of Rule 12(b), a motion asserting a 12(b)
24
defense may be filed at any time before a responsive pleading
has been filed.” Thompson v. Advocate South Suburban Hosp., No.
15-9184, 2016 WL 4439942, at *3 (N.D. Ill. Aug. 23, 2016)
(citing Hedeen Int’l, LLC v. Zing Toys, Inc., 811 F.3d 904, 905
(7th Cir. 2016)); see also Sun Microsys. Inc. v. Hynix
Semiconductor Inc., 534 F. Supp. 2d 1101, 1118 (N.D. Cal. 2007)
(“[T]he Ninth Circuit allows a motion under Rule 12(b) to be
filed any time before the responsive pleading is filed.”). Under
this understanding of Rule 12(b), Bank of America’s motion to
dismiss was timely, as that motion was Bank of America’s first
filing and therefore it was filed before Bank of America filed a
responsive pleading.
Others courts, not unreasonably, have concluded “that the
timing rules for filing an answer under Rule 12(a) must also
apply to motions to dismiss under Rule 12(b).” Luv N’ Care, 306
F. Supp. 2d at 472. Those courts are thus of the view that “Rule
12 requires a motion to dismiss under Rule 12(b) to be filed
before the deadline for pleading——either within the 21 days set
by Rule 12(a) or within an extension of time granted by the
Court according to Rule 6(b).” Gillo v. Gary Cmty. Sch. Corp.,
No. 14-99, 2014 WL 3767680, at *2 (N.D. Ind. July 31, 2014). But
Rule 12(a)’s 21-day pleading clock does not start to run until a
defendant is properly served. See Fed. R. Civ. P. 12(a)
(requiring a defendant to serve an answer “within 21 days after
25
being served with the summons and complaint”); see also Luv N’
Care, 306 F. Supp. 2d at 471 (explaining that if a defendant has
not been served, its time to respond under Rule 12(a) has “not .
. . begun”).
Here, Ms. Canuto attempted to serve Bank of America by
mailing the summons and the complaint to a Bank of America
branch in California. See Pl.’s Opp. to BOA’s Mot., ECF No. 23
at 1. Under an analysis that should be familiar at this point,
see supra Part II.A.2, this attempted service was deficient:
First, under Federal Rule 4(h)(1)(B), service by mail was
inadequate. Wesenberg, 2015 WL 5599012, at *2. Second, even
assuming that a cashier or assistant cashier or some other
enumerated agent was delivered the summons and the complaint at
the Bank of America branch where service was attempted, see Cal.
Civ. Proc. Code § 416.10, Ms. Canuto has not demonstrated that
she has complied with the California service by mail requirement
that two copies of a notice and acknowledgement form be provided
to the person to be served, nor has she demonstrated that she
complied with the requirement of providing “a return envelope,
postage prepaid, addressed to the sender.” See Cal. Civ. Proc.
Code § 415.30. Accordingly, service under California law was
deficient. Third, under District of Columbia law, Ms. Canuto has
not demonstrated that the person to whom the summons and the
complaint was delivered at the Bank of America branch was an
26
authorized recipient of service, see D.C. Super. Ct. R. Civ. P.
4(h)(1)(B); see Bazarian Int’l Fin. Assocs., LLC v. Desarrollos
Aerohotelco, C.A., 168 F. Supp. 3d 1, 13 (D.D.C. 2016) (“[T]he
plaintiff bears the burden of demonstrating that service has
been effected properly.”), nor has she demonstrated compliance
with the District of Columbia’s service by mail requirements.
See D.C. Super. Ct. R. Civ. P. 4(c)(4) (requiring that a return
receipt be requested), 4(c)(5) (requiring delivery of notice and
acknowledgment forms and “a return envelope, postage prepaid,
addressed to the sender”). Thus, even if the Court were to
conclude that, per Rule 12(a), a Rule 12(b) motion must be filed
within 21 days of service, the Court cannot conclude that Bank
of America missed its filing deadline: Without proof that Bank
of America was properly served, the Court cannot conclude that
Bank of America’s 21-day clock ever started running.
Accordingly, whatever the appropriate rule for the
timeliness of a Rule 12(b) motion, Bank of America’s Rule
12(b)(6) motion was timely filed in this case.
2. Statutory Time Limitations
Federal Rule of Civil Procedure 12(b)(6) “is the vehicle
for asserting the affirmative defense of statutory time
limitation.” Peart v. Latham & Watkins LLP, 985 F. Supp. 2d 72,
80 (D.D.C. 2013). Because statute of limitations issues often
depend on contested questions of fact, “a defendant is entitled
27
to succeed on a Rule 12(b)(6) motion to dismiss brought on
statutes of limitations grounds only if the facts that give rise
to this affirmative defense are clear on the face of the
plaintiff’s complaint.” Lattisaw v. District of Columbia, 118 F.
Supp. 3d 142, 153 (D.D.C. 2015).
Liberally construing Ms. Canuto’s filings, the Court
discerns that she is attempting to assert the following claims
against Bank of America: state common law claims for breach of
contract,17 trespass, assault, battery, invasion of privacy,
intentional infliction of emotional distress, and negligence,
see Am. Compl., ECF No. 10 at 11-12, 15-16, 40; Pl.’s Opp. to
BOA’s Mot., ECF No. 23 at 2; Pl.’s Surreply to BOA’s Reply, ECF
No. 29 at 2, and federal law claims under 42 U.S.C. § 1981 and
42 U.S.C. § 1983. See Am. Compl., ECF No. 10 at 20, 39.18 Given
the facts alleged in Ms. Canuto’s amended complaint, all of
these claims against Bank of America are conclusively time
barred.
17 Ms. Canuto’s amended complaint states that she is not making a
breach of contract claim, Am. Compl., ECF No. 10 at 20, but in a
later filing she says that one of her claims against Bank of
America is for breach of contract. Pl.’s Surreply to BOA’s
Reply, ECF No. 29 at 2.
18 To the extent that Ms. Canuto seeks to assert a claim under 18
U.S.C. § 242 against Bank of America, that claim is barred
because there is no private right of action under § 242. McCray
v. Holder, 391 F. App’x 887, 888 (D.C. Cir. 2010) (per curiam).
28
i. State Law Claims
“When deciding state-law claims under diversity or
supplemental jurisdiction, federal courts apply the choice-of-
law rules of the jurisdiction in which they sit.” Ideal Elec.
Sec. Co. v. Int’l Fid. Ins. Co., 129 F.3d 143, 148 (D.C. Cir.
1997). “Because the District of Columbia treats the statute of
limitations as a procedural issue rather than a substantive one,
the law of the forum state applies, as it does with respect to
all procedural matters.” Gaudreau v. Am. Promotional Events,
Inc., 511 F. Supp. 2d 152, 157 (D.D.C. 2007) (internal quotation
marks omitted). Accordingly, District of Columbia law provides
the limitations periods for Ms. Canuto’s state law claims. Under
District of Columbia law, none of the state law claims asserted
against Bank of America has a statute of limitations longer than
three years. See FiberLight, LLC v. WMATA, No. 16-2248, 2017 WL
2544131, at *8 (D.D.C. June 12, 2017) (three-year statute of
limitations for a breach of contract claim under D.C. Code § 12-
301(7)); Tolbert v. Nat’l Harmony Mem’l Park, 520 F. Supp. 2d
209, 211-12 (D.D.C. 2007) (three-year statute of limitations for
a trespass claim under D.C. Code § 12-301(3)); King v. Barbour,
No. 16-727, 2017 WL 782880, at *2 (D.D.C. Feb. 28, 2017) (one-
year statute of limitations for an assault claim under D.C. Code
§ 12-301(4)); Battle v. District of Columbia, 21 F. Supp. 3d 42,
47 (D.D.C. 2014) (one-year statute of limitations for a battery
29
claim under D.C. Code § 12-301(4)); Doe v. Se. Univ., 732 F.
Supp. 7, 8 (D.D.C. 1990) (one-year statute of limitations for an
invasion of privacy claim); Thong v. Salon, 634 F. Supp. 2d 40,
43 (D.D.C. 2009) (three-year statute of limitations for an
intentional infliction of emotional distress claim but a shorter
statute of limitations when that claim is “intertwined” with
claims that have a shorter statute of limitations); Swanson v.
Howard Univ., No. 17-127, 2017 WL 1377901, at *3 (D.D.C. Apr.
13, 2017) (three-year statute of limitations for a negligence
claim under D.C. Code § 12-301(8)). The statutory period begins
to run “from the time the right to maintain the action accrues.”
D.C. Code § 12-301. The cause of action accrues “when the
plaintiff knows or through the exercise of due diligence should
have known of the injury.” See District of Columbia v. Dunmore,
662 A.2d 1356, 1359 (D.C. 1995) (internal quotation marks
omitted).
Here, Ms. Canuto was or should have been aware of any
injury caused by Bank of America at some unspecified time in
2009, as that is when she noticed that documents had gone
missing from her safe deposit box in a Bank of America branch in
California and when, accordingly, she ceased using her safe
deposit box at that Bank of America branch. See Am. Compl., ECF
30
No. 10 at 11-12.19 Thus her state law claims against Bank of
America accrued in 2009. In waiting to file suit until November
16, 2016, approximately seven years after Bank of America’s
actions that allegedly caused her injury, Ms. Canuto brought her
state law claims against Bank of America too late. Those claims
are time barred.
ii. Federal Law Claims
Ms. Canuto’s federal statutory claims against Bank of
America under 42 U.S.C. § 1981 and 42 U.S.C. § 1983 are also
time barred.
Section 1981 prohibits racial discrimination with respect
to the right of “[a]ll persons within the jurisdiction of the
United States . . . to make and enforce contracts.” 42 U.S.C. §
1981. If a § 1981 claim relates to conduct that occurred after
the formation of the contract in question, then it “is governed
by the federal four-year limitations period found in 28 U.S.C. §
1658.” Lattisaw, 118 F. Supp. 3d at 156-57 (internal quotation
marks omitted). Because Ms. Canuto entered into a safe deposit
box rental contract with Bank of America in 2005 but complains
about Bank of America’s conduct from 2009, see Am. Compl., ECF
No. 10 at 11, she challenges only post-contract formation
19Ms. Canuto alleges that Bank of America is still billing her
for a safe deposit box. See Pl.’s Notice to the Court, ECF No.
33 at 1-2. That allegation does not appear to be connected to
any of her claims against Bank of America.
31
conduct and, accordingly, her § 1981 claim is subject to a four-
year limitations period running from the date on which that
claim accrued. The latest that that claim could have accrued was
on some unspecified date in 2009 when, again, Ms. Canuto was or
should have been aware of the injury that Bank of America
allegedly inflicted: permitting documents to go missing from a
safe deposit box located at a Bank of America branch in
California. See Am. Compl., ECF No. 10 at 11-12; Lattisaw, 118
F. Supp. 3d at 157 (assuming that the discovery rule applies in
the context of a § 1981 claim and explaining that that rule
mandates that the statute of limitations period begins to run
when a plaintiff is aware or should be aware of the injury).
Because the instant action commenced on November 16, 2016, more
than four years after Ms. Canuto’s § 1981 claim against Bank of
America accrued, that claim is time barred.
And even putting to the side that Bank of America does not
act under the color of state law and thus a § 1983 claim cannot
be maintained against it, see Quezada v. Marshall, 915 F. Supp.
2d 129, 135 (D.D.C. 2013) (citing Williams v. United States, 396
F.3d 412, 414 (D.C. Cir. 2005)),20 the § 1983 claim against Bank
20To the extent that Ms. Canuto means to assert Fourteenth
Amendment constitutional claims against Bank of America outside
of the vehicle of the § 1983 claim, see Am. Compl., ECF No. 10
at 5, those claims are similarly barred. See Williams, 396 F.3d
at 414 (“Courts generally treat ‘under color’ of law . . . as
32
of America is barred on statute of limitations grounds. Even
though Bank of America’s conduct and Ms. Canuto’s alleged injury
occurred in California, this Court “looks[s] to District law for
the applicable statute of limitations” for Ms. Canuto’s § 1983
claim. See Jones v. Kirchner, 835 F.3d 74, 80-81 (D.C. Cir.
2016) (applying the statute of limitations imposed by District
of Columbia law to a § 1983 claim brought in the District of
Columbia even though the alleged constitutional tort occurred in
Maryland). The applicable limitations period is three years. Id.
at 81. A § 1983 claim generally accrues when the alleged
wrongful conduct occurs. See Muñoz v. Bd. Of Trs. of the Univ.
of the Dist. of Columbia, 427 F. App’x 1, 4 (D.C. Cir. 2011)
(per curiam). Because the alleged wrongful conduct undergirding
Ms. Canuto’s § 1983 claim against Bank of America occurred on
some unspecified date in 2009, her § 1983 claim against Bank of
America accrued in 2009. Because the instant action commenced on
November 16, 2016, more than three years after Ms. Canuto’s §
1983 claim against Bank of America accrued, that claim is time
barred.
Accordingly, because all of the claims asserted against
Bank of America are barred on statute of limitations grounds,
the Court GRANTS its motion to dismiss.
the same thing as the ‘state action’ required under the
Fourteenth Amendment.”) (some internal quotation marks omitted).
33
III. Conclusion
For the foregoing reasons, DePauw’s motion to quash and/or
dismiss is GRANTED IN PART and DENIED IN PART; Cirrus’ motion to
dismiss is GRANTED; and Bank of America’s motion to dismiss is
GRANTED. A separate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
August 10, 2017
34