D. HARrus, Stale BarNo.

146672
Gen()f'aJ of California
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ScarrH. WYCKOFF, State Bar No. 191367
Supervising Deputy Attorney GI.)neraJ
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MAlTHf';wT. BnsrvlER, State Bar No. 269138
Deputy Attol'ncy General
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2550 Mariposa Mall, Room 5090

KAMALA
AHorn~)y

Frosno, CA 93721

Teleph(mc: (559) 477-1680

(559) 445~5106

E-mail: M.atthew.Bes111C;;I.@doj.ca.gov

Attomeys/or})efe ndwlts
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IN THE UN n'ED STArES DIS'IIUCT COURT

FOR 'rIlE EASTERN DISTIUCT ()F CALIFORNIA

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REHAN SH.EIKH,

PS

2: 14cv,751

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]J[~CLARATION

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OF ~1ATTHll;"YT.
IN SU['l"ORT OJ;' MOTION TO
DISl\{lSS .(;~OR IN80FFICIKNT SltRVICI~

n~:SMER

v,

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BRIAN J(IU.. LY S.~cretnrYJ California
TrallSpUl'hJtioll AgelU~y Rlld M'lrk Twccty.
Manager, J)epartment of Motor Vchicles,

lS
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OF PROCESS PURSUANT TO R1JLE

12(b)(5)

Date:
Time:
Courtroom:
Judge:

May
2014
lO:(lO a.ln.
th

8 Floor
Honorable Allison Claire

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I, Matthew '.1'. Hesmer, declare as follows:

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1.

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I am a Deputy Attorney General and r am making a special

of defendants Briun Kelly, SC\eretiiTY of Cali1c)rnia StHte Transporlation

on behalf

and Mark

Tweety, Manager, Department of M.oior Vehicles foJ' purpos(~s of obje<:ting to service of J'l'CWeS8.

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After receiving copies ofthe complaint and summons

Uk'll

PlaintitTmailed to the

defctltbmts, I sent Plaintiff an e-mail on April 10,2014, to conflnn that defendant wOllld have 60
days from the

of atternpted moil

8CfVict;"

10 respond

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LO

the cOTl'lplaint

3.

On April 1.0, 2014, Plai ntiil' responde:d by ~taLillg "[tJhfmks for your

My

reGords show that the: USPS served OJ1 DMV on March

client has 21 days to responds to the complaint. If you need a few extra days, we Cil.n stipulate.

4.

The Court docuillents show that your

On April 11,2014, I replied to the Plaintiff and I explained that his mail service

r ::;taled that he was required to personally serve stat(~ .

was defective.

a \'V'Eliver of service. I st<:~t(~d that PlaintLl'fhad not comptied with the mail service requirements

because he hud 110t included the rcqm~st I;x wl'livcl' pursuant to Rule 4(d), and alternatively,

had not included the Notit~e and Ad(nowlc;~dgme,nt required CaHfornia Code of Civil Proct~durc

s(~ction

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detendants, or ohtain

415.30.
5.

On Apri I [4, 2014, I spoke to Plaintiff on the

phOll!;].

I slated that my cl ients lu1d

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agreed to waive personal service, and ill exchange, they would he entitled to 60

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the complaint. Plaintiff ol:jccted to Defendants having 60

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within so days consistent with the tlrne period allowed for mail

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Civil Procedure section 415.30. Plaintiff obje(:tcd to this titne Emd offered DeJendants 15 extra

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days. When Tstated that t]lC defendants had agreed to waive personal

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the federal rules fUld that they would he em:itlcd to at least 50 days to respond to the complaint,

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PlairltifC stated that he needed additional time to think about it At

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that lime was running short and till'll I would

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insufficient service of process.

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6.

to respond to

to n~::Ipond. I offer(''(1 to respond

under Cal ifomia (:0"0 of

ill

accordance with

time, I iniiJnned Plaintiff

filing a motion to dis.lniHS on grounds of

PlaintitI asked me if 1 wanl(~d him to personally St~rve my clknts. [s1at(~d 110. 1

made it very clear to him tbat my clients were willing to

to waivi;;

in accordlmee

withRuk 4.
7.

I sent Plaintiff an e-mail confirming of our conversation, a true and

which h. attached hert':to as Exhibit A.

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/ / /

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C01Tect

of

I dec1an:: under penalty of Pi.~ljUl'y under the laws of tile State of CuHtbmia and the Unitt;c\

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States of America that the forgoing is true and corrt::d and that this Decla.ration was execnted by

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me on Ihis16th day of April, 2014, at Fresno, CaJif.hrnia.
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lsi !Matthew 7.: CBesmer

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!vlAlTllEW T.BESMER

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SA2Dl ,H 1550.5
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95102187.doc
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EXHIBIT A

Document
,Carol Borunda
From:

Sent:

Matthew Besrner
Monday, April
20144:28 PM

To:

r,,~hanshejkh@lyahoo,com

Cc:

Carol Borunda
Sheikh v, Kolly Confirmation (If Phone Conversation

SUbject:

Mr. Sheikh:

It was nice talking with you today. This e-mail confirms OU,! conversation regarding insufficient
service, of process.
During OUI phone conversation. I stated that 'Our clients ha'lTe agreed to waive personal sel'lice
pursuant to Rule 4(d) even though you have not followed the waiver requirements of this rule. I
to the complaint
also stated that pursuant to Rule 4(d), our clie~nts would have 60 clays to
from the date you mailed the summons.
When you objected to our clients having 60 days to respond to the complaint, I offaJ;ed to follow
the mail service rules of California Code of Civil Procedure section 416.30 even though you
not include a copy of the required Notice and Acknowledgment. Under this rule, our clients
would have 50 days to respond to the complaint.
You asked me if I wanted you to personally serve my clients. I said no. I made it very clear that
my clients had agreed to waive personal service pursuant to either Rule 4(d) or CCP section
416.30. You agreed that our clients could have a 16 additional days to respond to
complaint. When I stated that our clients had agreed to waive personal
in accordancB
'II'lith the federal rules and fhat we would be entitled to at least 60 days to
to tho
complaint, you stated that you needed additi<mal time to think about it.
I informed you that we were nmning short on time and that if you did not
to follow the mail
service rules, we would be filing a motion to dismiss on grounds of insufficient
of process.

Very respectfully,

Matthew T. Basmer

Deputy AUontey General

Department of Justice

Offico of the Attorney Genel'al

2580 Mariposa Mall, fun. 6090

Fresno, CA 93121

Direct: (669) 477-1680

Public: (669) 417-1691

Fax: (559) 445-5106