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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
ARAC D. BURT, an individual, 
Plaintiff, 
v. 
SAN DIEGO DEPARTMENT OF 
VETERANS AFFAIRS, 
Defendant. 
 
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Case No.:  24-cv-2435-BEN 
 
ORDER GRANTING MOTION TO 
DISMISS WITHOUT PREJUDICE 
WITH LEAVE TO AMEND 
 
      [ECF No. 15, 16] 
I. INTRODUCTION 
Plaintiff ARAC D. BURT (“Plaintiff”), proceeding pro se, brings this action 
against Defendant San Diego Department of Veterans Affairs (“Defendant”).  Plaintiff’s 
First Amended Complaint (“FAC”) alleges claims under numerous federal statutes and 
procedural rules.1   
 
1 Plaintiff brings claims under the Federal Tort Claims Act of 1946, 28 U.S.C. §§ 2671-2680; 42 U.S.C. 
§ 1985; 42 U.S.C. § 1983; 5 U.S.C. §§ 2302(b)(8)-(9); the Federal Information Security Modernization 
Act ("FISMA"), 44 U.S.C. § 3551 et seq.; 18 U.S.C. §§ 241, 242; 18 U.S.C. § 1512; Federal Rule of 
Civil Procedure 37; and Fed. R. Civ. P. 65. 
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Defendant moves to dismiss the FAC pursuant to Fed. R. Civ. P. Rule 8, 12(b)(1), 
12(b)(5), and 12(b)(6).  (ECF No. 15).  Plaintiff moves for leave to amend.  (ECF No. 
16).  For the reasons set forth below, the Court GRANTS Defendant’s Motion to 
Dismiss Plaintiff’s First Amended Complaint, without prejudice and GRANTS 
Plaintiff’s motion for leave to amend. 
II. BACKGROUND 
A. Statement of Facts2 
This matter arises from Plaintiff’s employment at the VA San Diego Healthcare 
System, a U.S. Department of Veterans Affairs facility in San Diego, California.  In 
January 2024, Plaintiff received a message from his supervisor that asked, in part, “is 
your brain fried.”  Plaintiff alleges that his supervisor knew Plaintiff had a mental health 
condition and a traumatic brain injury.  Plaintiff claims that this message caused him 
emotional and mental harm, caused him to experience panic attacks, and triggered a 
"mental health anxiety crisis, duress and distress stress" that necessitated emergency 
medical treatment.  Plaintiff asserts that he is "exempt from the exhaust all remedies 
requirement" applicable to certain claims due to his alleged mental disability. He seeks 
monetary damages, injunctive relief to prevent further alleged violations, and 
appointment of counsel based on his alleged mental disability.  
Defendant moves to dismiss the FAC on multiple grounds.  First, Defendant 
argues the FAC does not provide a "short and plain statement" of Plaintiff's claims as 
required by Fed. R. Civ. P. Rule 8(a).  Second, Defendant contends the Court lacks 
subject matter jurisdiction over Plaintiff's claims under Rule 12(b)(1).   Third, 
Defendant asserts that service of process was insufficient under Rule 12(b)(5) because 
 
2 When deciding a motion to dismiss, a court generally accepts as true all well-pleaded 
factual allegations.  Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).  Here, the Court is not 
making findings of fact, but instead summarizing some of the allegations in the First 
Amended Complaint. 
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service did not comply with Fed. R. Civ. P. Rule 4.  Fourth, Defendant argues the FAC 
does not state a claim upon which relief can be granted under Rule 12(b)(6).  Defendant 
further argues that Plaintiff is not exempt from the FTCA's requirement to exhaust 
administrative remedies before filing suit, and that amendment would be futile because 
the deficiencies in Plaintiff's claims cannot be cured.  
III. LEGAL STANDARD 
A. Rule 8 
Federal Rules of Civil Procedure Rule 8(a)(2) requires a complaint to contain “a 
short and plain statement of the claim showing that the pleader is entitled to relief,” in 
order to “give the defendant fair notice of what the . . . claim is and the grounds upon 
which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).  Additionally, 
“[e]ach allegation must be simple, concise, and direct.”  Fed. R. Civ. P. 8(d)(1).   
A “dismissal for a violation under Rule 8(a)(2), is usually confined to instances in 
which the complaint is so verbose, confused and redundant that its true substance, if any, 
is well disguised.” Hearns v. San Bernardino Police Dept., 530 F.3d 1124, 1131 (9th Cir. 
2008) (quoting Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969) (internal 
citations omitted)).  
B. Rule 12(b)(5) 
Federal Rules of Civil Procedure 12(b)(5) permits a defendant to file a motion to 
dismiss based on “insufficient service of process.”  “Before a federal court may exercise 
personal jurisdiction over a defendant, the procedural requirement of service of summons 
must be satisfied.” Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 
(1987).  “Once service is challenged, plaintiffs bear the burden of establishing that 
service was valid under Rule 4.”  Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004).  
If service of process is found insufficient under Rule 4, "[t]he choice between dismissal 
and quashing service of process is in the district court's discretion." S.J. v. Issaquah Sch. 
Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006) (quoting Stevens v. Sec. Pac. Nat. 
Bank, 538 F.2d 1387, 1389 (9th Cir. 1976)). 
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/// 
C. Rule 4 
“A summons must be served with a copy of the complaint.  The plaintiff is 
responsible for having the summons and complaint served within the time allowed by 
Rule 4(m) and must furnish the necessary copies to the person who makes service.”  Fed. 
R. Civ. P. 4(c)(1).  “If a defendant is not served within 90 days after the complaint is 
filed, the court—on motion or on its own after notice to the plaintiff —must dismiss the 
action without prejudice against that defendant or order that service be made within a 
specified time.”  Fed. R. Civ. P. 4(m). 
To serve a federal agency, a plaintiff must comply with Rule 4(i)(1), which 
requires service in three ways: 
(A) by deliver[ing] a copy of the summons and of the complaint to the 
United States attorney for the district where the action is brought— or to an 
assistant United States attorney or clerical employee whom the United States 
attorney designates in a writing filed with the court clerk— or [by] send[ing] 
a copy of each by registered or certified mail to the civil-process clerk at the 
United States attorney's office; 
(B) by send[ing] a copy of each by registered or certified mail to the 
Attorney General of the United States at Washington, D.C.; and 
(C) [if the agency is a corporation,] by delivering a copy of each as 
prescribed by Rule 4(h), or by sending a copy of each by registered or 
certified mail to the chief executive officer of the agency. 
Fed. R. Civ. P. 4. 
D. Rule 15 
When a motion to dismiss is granted, the court must decide whether to grant leave 
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to amend.  Pursuant to Rule 15(a)(2), “[t]he court should freely give leave when justice 
so requires.”  Id.  This policy is applied with “extreme liberality.”  Eminence Capital, 
LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003).   
IV. DISCUSSION 
A. Service of Process 
The Court cannot take Plaintiff's inability to timely effectuate proper service of 
process lightly.  In the absence of service of process (or waiver of service by the 
defendant), a court ordinarily may not exercise power over a party the complaint names 
as a defendant.  Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999).  
A court "is without personal jurisdiction over a defendant unless the defendant has been 
served in accordance with [Rule 4]."  Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) 
(citation omitted).  
Pro se litigants, such as Plaintiff, are subject to the same rules of procedure as all 
other litigants, and thus a plaintiff's pro se status does not excuse him from compliance 
with Rule 4.  See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (overruled on other 
grounds) (citation omitted).  
Here, Plaintiff did not satisfy Rule 4(i)(1)'s requirements for serving a federal 
agency.  The record reflects that Plaintiff did not serve a copy of the summons and FAC 
on the United States Attorney for the Southern District of California.  Plaintiff also did 
not serve the Attorney General of the United States in Washington, D.C.  Additionally, 
no summons was issued for the FAC.   
Without a summons, and without service on all three required parties as specified 
in Rule 4(i)(1), service was not properly affected.  Because Plaintiff bears the burden of 
establishing valid service and has not done so, the Court lacks personal jurisdiction over 
Defendant.  Brockmeyer, 383 F.3d at 801.  Moreover, Defendants did not waive service 
under Rule 4(d)(1).  Defendant timely raised this defense in its Motion to Dismiss filed 
on July 14, 2025, thereby preserving the issue under Rule 12(h)(1). 
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Accordingly, the Court GRANTS Defendant's Motion to Dismiss pursuant to Rule 
12(b)(5) for insufficient service of process. 
B.       The FAC Does Not Satisfy Rule 8 
Alternatively, the FAC does not provide a short and plain statement of the claim 
showing that the pleader is entitled to relief.  Fed. R. Civ. P. 8(a)(2).  The FAC’s 
extensive length is accompanied by organizational deficiencies that obscure rather than 
clarify Plaintiff's claims.  It is difficult to discern which factual allegations correspond to 
which legal claims.3 
Here, the FAC intermingles factual allegations, legal conclusions, procedural 
arguments, and evidentiary detail without clear delineation.  The FAC identifies multiple 
potential theories of liability, however, the FAC does not clearly delineate which factual 
allegations correspond to each claim.  For example, Plaintiff alleges that between 
February and December 2024, he made repeated complaints to management about 
various issues.  Yet, the complaint does not specify what complaints were made, when 
each complaint was made, to whom each complaint was made, what response, if any, was 
received, or which of these complaints relates to which legal claim.   
Similarly, Plaintiff alleges that because Defendant's did not investigate his 
concerns, it forced him to bypass administrative adjudication due to imminent harm.  
This allegation appears to be a legal argument about exhaustion of administrative 
remedies rather than a factual allegation, and it is unclear which claim it is intended to 
support.   
The Defendant cannot reasonably be expected to admit or deny allegations or 
assert affirmative defenses when the complaint does not clarify which allegations relate 
to which claims or what legal theory underlies each claim.4 
 
3 In Hearns, the court held Rule 8 is satisfied when a complaint is "logically organized, divided into a 
description of the parties, a chronological factual background, and a presentation of enumerated legal 
claims, each of which lists the liable Defendants and legal basis therefore."  530 F.3d at 1132.   
4 See id. at 1130. 
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The FAC does not contain a short and plain statement of the claim showing that the 
pleader is entitled to relief.  Therefore, the Court GRANTS Defendant’s motion to 
dismiss pursuant to Rule 8, without prejudice and with leave to amend.   
C.       The Court Does Not Reach Defendant’s Remaining Arguments 
 The Court does not reach Defendant's additional arguments for dismissal under 
Rules 12(b)(1) and 12(b)(6).  Without proper service establishing personal jurisdiction, 
and until Plaintiff satisfies Rule 8's basic pleading requirements, the Court cannot 
meaningfully assess whether it has subject matter jurisdiction over Plaintiff's claims or 
whether Plaintiff has stated claims upon which relief can be granted.   
V. CONCLUSION 
Accordingly, the Court:  
1. GRANTS Defendant’s Motion to Dismiss, without prejudice  and GRANTS 
Plaintiff’s Motion for Leave to Amend.   
2. ORDERS any amendment to the Complaint filed by Plaintiff to be filed and 
served on the named Defendants within 60 days of the execution of this Order.    
 
IT IS SO ORDERED. 
DATED: March 27, 2026  
  HON. ROGER T. BENITEZ 
United States District Judge 
 
 
 
 
 
 
 
  
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