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1 No named defendant is discernible from the face of

plaintiffs’ difficult to decipher complaint, which is captioned as a

“United State[s] Attorney General Notice of Constitutional Challenge

24-133.” However, the captions of the “Memorandum of Law,” “Notice

of Motion of Constitutional Challenge,” and “Notice of Constitutional

Challenge” filed along with the complaint when plaintiffs initiated

this action indicate that Mr. Mitchell is the only named defendant.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

BERTHA KELLY and No. CIV.S-04-1873 WBS DAD PS

ANNETTE MCKEE,

Plaintiffs,

v. FINDINGS AND RECOMMENDATIONS

RICHARD C. MITCHELL, 

Defendant.

 /

This matter came before the court on April 22, 2005, for a

Status (Pretrial Scheduling) Conference. Plaintiffs, proceeding pro

se, appeared on their own behalf. Attorney Margaret Kemp-Williams

appeared specially on behalf of defendant Richard C. Mitchell,1 who

is a resident of New York, solely for the purpose of advising the

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2 At the initial status conference, Jim Labor, who identified

himself as a friend of plaintiffs’ family, appeared to observe the

status conference and was permitted to speak. 

2

court of Mr. Mitchell’s position that service of process has yet to

be completed.

Following the initial status conference on February 18,

2005, at which time plaintiffs failed to appear,2 the court issued an

order continuing the status conference to April 22, 2005, at 11:00

a.m. That order provided plaintiffs thirty (30) additional days to

complete service of process upon defendant Mitchell, even though

plaintiffs had filed their complaint well over one hundred twenty

(120) days prior. See Fed. R. Civ. P. 4. The order forewarned

plaintiffs that failure to effectuate service of process and file

proof of such service with the court within the required time likely

would result in a recommendation of dismissal. See id.

On March 7, 2005, plaintiffs filed a “proof of service”

indicating that they served “a copy of Constitutional Challenge 24-

133 Federal Criminal Proceeding P 17.1" upon defendant Mitchell “by

placing said copy [in the] certified return receipt registered mail.” 

Normally, this manner of service would appear to be proper under

Federal Rule of Civil Procedure 4(e)(1), which allows service upon an

individual “pursuant to the law of the state in which the district

court is located,” and California Code of Civil Procedure § 415.40,

which allows service “on a person outside this state ... by sending a

copy of the summons and of the complaint to the person to be served

by first-class mail, postage prepaid, requiring a return receipt.”

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3 Approximately 120 pages of various documents are attached to

plaintiffs’ proof of service. However, none of those documents

indicate that defendant was served with a summons.

3

However, if service on a nonresident is made pursuant to

California Code of Civil Procedure § 415.40, the “proof of service

shall include evidence satisfactory to the court establishing actual

delivery to the person to be served, by a signed return receipt or

other evidence[.]” Cal. Code Civ. Proc. § 417.20(a)(emphasis added). 

Plaintiffs have provided no such evidence of actual delivery. See

Bolkiah v. Superior Court (Bijan Fragrances, Inc.), 74 Cal. App. 4th

984, 1001, 88 Cal. Rptr. 2d 540, 551 (1999)(“Proof of service by mail

on out-of-state defendants must nevertheless strictly comply with the

requirements of Code of Civil Procedure section 417.20, subdivision

(a).”). Therefore, service is void even though defendant may have

actual notice of the action. See 3 Witkin, California Procedure (4th

Ed. 1996) Actions § 933 (citing cases).

Moreover, plaintiffs’ proof of service does not indicate

that defendant Mitchell was served with a summons along with the

complaint as required.3 Of course, the rules require that “[a]

summons shall be served together with a copy of the complaint.” Fed.

R. Civ. P. 4(c)(1). Indeed, neither the court’s docket nor the 

court’s file indicate that a summons was ever issued in this case. 

It is plaintiffs’ responsibility to have a summons issued. Fed. R.

Civ. P. 4(b)(“Upon or after filing the complaint, the plaintiff may

present a summons to the clerk for signature and seal.”).

/////

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4

There being no indication that defendant Mitchell has been

served with a copy of the summons and complaint as required, the

undersigned finds that plaintiffs have failed to complete service of

process. Dismissal of plaintiffs’ complaint is therefore

appropriate.

Additionally, while the precise nature of plaintiffs’

claims are unclear, the allegations of the complaint and plaintiffs’

comments at the status conference strongly suggest that plaintiffs

may be attempting to challenge a New York state court child custody

order. If that is the case, there would almost certainly be no basis

for federal jurisdiction. See Ankenbrandt v. Richards, 504 U.S. 689,

703 (1992) (holding that domestic relations exception to federal

jurisdiction "divests the federal courts of power to issue divorce,

alimony, and child custody decrees"); D.C. Court of Appeals v.

Feldman, 460 U.S. 462, 482-86 & n.16 (1983) (holding that district

courts do not have jurisdiction to review state court decisions or

claims "inextricably intertwined" with the merits of the state court

determination).

Accordingly, IT IS HEREBY RECOMMENDED that this action be

dismissed without prejudice for failure to compete service or process

in a timely fashion.

These findings and recommendations are submitted to the

United States District Judge assigned to the case pursuant to the

provisions of 28 U.S.C. § 636(b)(l). Within ten (10) days after

being served with these findings and recommendations, any party may

file written objections with the court and serve a copy on all

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parties. Such a document should be captioned “Objections to Findings

and Recommendations.” The parties are advised that failure to file

objections within the specified time may waive the right to appeal

the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th

Cir. 1991).

DATED: April 28, 2005.

DAD:th

DAD1\orders.prose\kellymckee.f&r.dism

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