Canuto v. Carter

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