Unreported / Non-Citable
Background
Larry Luong, who represents himself, sells a mattress sheet tucking tool on Amazon.com. He alleges that Edward Ellin-Carrillo's competing tool copies the distinctive overall visual appearance, aesthetic presentation and marketplace impression of his product. He filed his original complaint in the Central District of California on January 23, 2026, alleging copyright infringement and unfair competition. His First Amended Complaint, filed June 10, 2026, asserts seven claims: copyright infringement, trade dress infringement, false advertising, federal trade dress dilution, unfair competition, California trade dress dilution, and intentional interference with prospective economic advantage. These are allegations only, and the court did not address their merits.
After the defendant moved to dismiss, the Central District found venue improper and transferred the case to the Southern District of California. On September 8, 2026, the defendant moved to dismiss the amended complaint under Rules 12(b)(5) and 12(b)(6). The motion was fully briefed. The court decided only the insufficient-service issue and declined to reach the Rule 12(b)(6) arguments at this time.
The Court’s Holding
The court granted the Rule 12(b)(5) motion, concluding that the defendant had not been properly served under Rule 4. Once service is challenged, the plaintiff bears the burden of showing it was valid. Luong filed three proofs of service. Each was signed under penalty of perjury stating that he was not a party to the action, yet each identified him as the person who served the papers. The court held that this attempted service was deficient under Rule 4(c)(2), which allows service by a nonparty. The first two proofs reflected service by email, which the court held is not proper service under Rule 4. The third reflected service by mail with acknowledgment of receipt. Rule 4(e)(1) can incorporate that California method, but the form did not check the box showing that an acknowledgment form was enclosed, and no executed acknowledgment was filed. Citing Ninth Circuit authority, the court explained that California mail service is valid only if a signed acknowledgment is returned and the other requirements are met.
Luong argued that he served the amended complaint by registered mail under Rule 5(b)(2)(C). The court rejected that argument. When the original complaint was never served, the amended complaint must be served under Rule 4, not Rule 5. Rule 5 is available only where the original complaint was properly served under Rule 4.
On remedy, the court noted that it may dismiss the action or quash service. The 90-day period under Rule 4(m) expired on April 23, 2026. The court nonetheless extended the service deadline in its discretion. It found potential prejudice to the defendant minimal because he had notice and had actively participated in the case. It also weighed Luong's multiple service attempts, his pro se status, and his request for another chance to serve under Rule 4(e). The court quashed service and ordered Luong to serve the defendant under Rule 4(e) within 30 days, warning that the court will otherwise dismiss the case. The clerk was directed to issue a summons for the amended complaint, and Luong's remote-appearance request was denied as moot.
Key Takeaways
- A party cannot serve process on the opposing side. Rule 4(c)(2) permits service only by a nonparty, and a proof of service naming the plaintiff as the server is deficient even if signed under penalty of perjury.
- Email service on an individual defendant did not satisfy Rule 4 in this order, even though the defendant had actual notice of the lawsuit.
- Mail service under California law, borrowed through Rule 4(e)(1), requires an enclosed acknowledgment form and a signed acknowledgment returned to the sender. Without a returned acknowledgment, service is not complete.
- A plaintiff who never properly served the original complaint under Rule 4 cannot rely on Rule 5 to serve an amended complaint.
- Defective service does not always end the case. Here the court quashed service and allowed 30 days to cure it, but the order warns that failure to serve properly will lead to dismissal.
Why It Matters
This order is a short, practical application of settled service rules to a self-represented plaintiff. The court held that email, self-service and incomplete mail service were all ineffective, and it did not excuse the defects because the defendant knew of the suit. It also showed that those defects are not necessarily fatal to the case. Weighing prejudice, notice, prior attempts and pro se status, the court preferred quashing service and resetting the clock over dismissal.
The order is a district court ruling and is not a final judgment. The claims have not been tested on the merits, and the Rule 12(b)(6) arguments remain undecided. If Luong serves the defendant properly within 30 days, the case can proceed. If he does not, the court has said it will dismiss.