Opinion
No. CV 00-04158 ABC (BQRx)
March 29, 2001
PROCEEDINGS: DEFENDANTS' MOTIONS TO DISMISS (In Chambers)
On February 8, 2001 Defendants Hansell, De La Rocha, Jackson and Boeckmann II filed their Motion to Dismiss the Second Amended Complaint ("SAC") (the "Hansell Motion"), noticed for a hearing on March 5, 2001. On February 23, 2001 Defendants Hernandez, Svorinich, Bernson and Chick filed another Motion to Dismiss the SAC (the "Hernandez Motion"), noticed for a hearing on March 19, 2001. On February 27, 2001, the Court continued the hearing on the Hansell Motion to April 2, 2001, and gave Plaintiffs until March 19, 2001 to oppose. On March 13, 2001 the Court also moved the hearing on the Hernandez Motion to April 2, 2001, and gave Plaintiffs until March 19, 2001 to oppose this (second) Motion as well. In the interim, on March 1, 2001 Defendant Ferraro filed a Notice of Joinder in the Hernandez Motion ("Ferraro Joinder").
On March 19, 2001 Plaintiffs filed their Opposition to the Hernandez Motion (and Ferraro Joinder); these Defendants filed a Reply on March 26, 2001 ("Hernandez Reply"). Plaintiff filed no opposing papers on the Hansell Motion, and these Defendants, in turn, filed no Reply. The Court finds both Motions appropriate for submission without oral argument. Therefore, the hearing on April 2, 2001 is hereby VACATED, for both Motions. For reasons that are articulated below, the Court hereby DENIES both Motions.
Plaintiffs' counsel explains an absence of opposition to the Hansell Motion by including the following footnote in the filed Oppositions to both the Hernandez Motion and the Ferraro Joinder:
1. A reading of the docket by plaintiffs' counsel reveals the February 8, 2000 [sic] filing of a motion to dismiss by police commissioners Boeckmann, Chaleff, Hansell, and Jackson, but plaintiffs' counsel does not have that motion, and does not know if it is before the court, as the hearing date indicated is March 5, 2001. Plaintiffs' counsel may be confused about this, or may be missing something, but counsel is unable to figure out the status of that motion, and wants an opportunity to oppose it if it is before the court.
The docket does reflect that the Hansell Motion was filed on behalf of Defendant Chaleff, though the Motion papers indicate the Motion is filed on behalf of Defendant De La Rocha, instead.
Opposition to Hernandez Motion at 1 n. 1; Opposition to Ferraro Joinder at 1 n. 1. This remark is a bit mysterious, given that a proof of service by mail was filed along with the Hansell Motion. Furthermore, counsel cannot claim to have been unaware that this Motion had been filed, since it was explicitly referenced in the Court's Minute Order, dated February 27, 2001, that continued the hearing on this Motion from March 5, 2001 to April 2, 2001. This means that, at least by February 27, 2001, counsel ought to have been aware the Motion had been filed. Presumably, this ought to have triggered some action to acquire a copy of the Motion. The period from February 27, 2001 to March 19, 2001 (deadline for any Opposition) provided adequate time for Plaintiffs to oppose.
Nonetheless, the Court is ordinarily hesitant to decide any substantive motion where the non-moving party has not had, or has not taken advantage of, an opportunity to oppose. However, under these circumstances, where the Hansell Motion presents similar or identical arguments to those that are presented in the Hernandez Motion, which Plaintiffs have opposed, the Court will assume that Plaintiffs' opposition to the Hansell Motion would also be alike. In addition, to the extent that the arguments in the two Motions are primarily legal, and depend only minimally on presentation of facts that might differ as to different Defendants, the Court is all the more willing to rely on one Opposition for both Motions. Finally, the fact that the Court rejects the legal arguments that are presented by both sets of Defendants, for the same reason(s), eliminates any possibility of prejudice to Plaintiffs. Thus, the Court has and will issue its decision as to both of the Motions.
The Court also dispenses quickly with Plaintiffs' objection to the Ferraro Joinder (of which counsel also claims to have been unaware), that the Notice of Joinder is somehow defective to have the arguments made on behalf of Defendants Hernandez, Svorinich, Bernson and Chick extend to Defendant Ferraro. See Opposition to Ferraro Joinder at 2 (citing Elwell v. Gates, 2001 WL 185080, *1 n. 3 (C.D. Cal. 2001)). Plaintiffs' counsel claims the Joinder is "meaningless," because it "has the limited purpose of joining a defendant in an existing motion to dismiss, which only seeks dismissal of the named moving Defendants . . ." Id. It is true the cited case (also litigated by Plaintiffs' counsel) supports this claimed "effect" of the Notice of Joinder. However, neither this case nor Plaintiffs' counsel provides any real explanation or authority for this conclusion. The Court does not agree that the Ferraro Joinder has only this limited significance.
Nor has the Court unearthed any such authority on its own.
To the contrary, the Court concludes that Ferraro meant to, and indeed did, "join" in the Hernandez Motion in the sense that arguments articulated therein (legal arguments made on behalf of members of the City Council, a category that applies to Ferraro as well as Hernandez, et al.) should be applied as appropriate to Defendant Ferraro as well. A conclusion that Defendant Ferraro must separately file another motion to dismiss, where arguments articulated in the already filed Hernandez Motion are inclusive, would be illogical, and would require the kind of multiplication of effort it is best to avoid. The answer might be different if there was some basis for differentiating between Ferraro and the other Defendants, but counsel has presented no such argument. As a result, the Court will include Ferraro in its decision(s).
Both sets of Defendants argue that they may not be liable in an individual capacity under Section 1983 because their authority to act, and therefore their "supervisory" authority, is curtailed and substantially limited by the fact that they are each only one member of a constituent board (Defendants on the Hansell Motion are members of the Los Angeles Board of Police Commissioners, and Defendants on the Hernandez Motion (plus Ferraro) are members of the Los Angeles City Council), which may only "act" by a vote of its majority. Each Defendant argues, therefore, that "individual members" of the Board of Police Commisioners, or City Council, do not have "supervisory authority" sufficient to be held liable in an individual capacity under Section 1983. See e.g., Hernandez Motion at 9; Hansell Motion at 4. Both Motions rely primarily on a Sixth Circuit case, Doe v. Claiborne County, 103 P.3d 495 (6th Cir. 1996), for support of this proposition. See id.
The Court cannot agree. Though there is some appeal in the rationale articulated by the Sixth Circuit, in the absence of any authority from the Ninth Circuit adopting or endorsing the Sixth Circuit's approach to individual liability for members of county or municipal boards, the Court is unwilling to limit individual liability in this way. The question is, ultimately, whether a board member's actions, or lack thereof, had enough "causative" effect on a constitutional deprivation. In both Trevino cases, and in Cunningham, the Ninth Circuit considered, and permitted, (under the right factual circumstance) a potential for individual liability for members of the Los Angeles City Council. In the absence of authority to the contrary, the Court must agree.
The Court does not find compelling Defendants' citation to Chuman v. Wright, 76 F.3d 292, 294-95 (9th Cir. 1996) in support of this proposition. Chuman dealt with the very different area of "team effort" liability for individual police officers. Nor did the Court find particularly compelling, or applicable, the reasoning of the other primary case cited by Defendants, Doe v. Rains County Independent School District, 66 F.3d 1402, 1411-17 (5th Cir. 1995). The Fifth Circuit found that one teacher could not be liable under Section 1983 for failing to report abuse of a student being perpetrated by another teacher at another school, due to her lack of "legal control" over the other teacher.
Trevino v. Gates, 23 F.3d 1480 (9th Cir. 1994) (Trevino I); Trevino v. Gates, 99 F.3d 911 (9th Cir. 1996) (Trevino II); and Cunningham v. Gates, 229 F.3d 1271 (9th Cir. 2000).
Given the breadth of the Trevino opinions, and Cunningham, it is clear that the Ninth Circuit could have decided this issue of board-member liability in any one of those cases, and did not.
For similar reasons, the Court also rejects the additional argument in the Hansell Motion that individual members of these county or city boards are not "policymakers," on their own, so as to warrant filing suit against them in their official capacities.
Both Motions also argue that these individual Defendants are entitled to dismissal of the Section 1983 claims against them in their official capacities, and/or substitution of the entity they represent, because an "official capacity" suit is, under Monell, a suit against the entity. See Hansell Motion at 7; Hernandez Motion at 12-14. At least two courts have dismissed official capacity claims under similar conditions. See Luke v. Abbott, 954 F. Supp. 202, 204 (C.D. Cal. 1997); Fireman's Fund Ins. Co. v. City of Lodi, 41 F. Supp.2d 1100, 1106 (E.D. Cal. 1999).
In Luke, the court even required the plaintiff to substitute the name of the municipality for that of the individual defendant (in Fireman's Fund, the city was also named, so the court found individual claims redundant). However, given that the Plaintiffs have not, in this case, named either the City or County of Los Angeles as a defendant (or the boards of which these Defendants are members), official capacity claims against these individual representatives are not, per se, "redundant." Nor is this Court willing to force Plaintiffs to substitute the City for the myriad individual representative Defendants named in the Complaint. In the absence of authority suggesting that these Defendants must be dismissed, the Court will not do so for convenience. Thus, the Court hereby DENIES both the Hansell Motion and the Hernandez Motion, to the extent they seek dismissal under Rule 12(b)(6).
The Hernandez Motion additionally argues that because the Plaintiffs have already sued Chief of Police Bernard Parks, also in his official capacity, the Complaint is already adequate as to stating a basis for municipal liability. They argue that claims against the members of the City Council in an official capacity are therefore redundant on this additional basis, and should be dismissed. However, this fails to take into account that each of the different "groups" of county and municipal Defendants sued in an official (and an individual) capacity represents a different "theory" or "basis" for liability. Although it is true that each of these "official capacity" suits is really a suit against the entity represented by each Defendant (or grouping thereof), the Court will not require Plaintiffs to choose, at this point, upon which of the theories of municipal liability they will proceed.
It might be different if the Court were dismissing claims against these Defendants in their individual capacities, as then they might be able to claim some real prejudice from being named in a suit (i.e., for purposes of credit checks, security, etc.). However, given that the individual-capacity claims survive, there seems little reason to require a substitution by Plaintiffs.
The final issue raised by both Motions is lack of compliance with the service requirements of Rule 4(m). It is clear in this case, and Plaintiffs do not deny, that the moving Defendants were not served in this matter until well after the 120 days allowed by Rule 4(m). See Hansell Motion at 7; Hernandez Motion at 14.
"If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. . . ." Fed.R.Civ.Pro. 4 (m).
The initial Complaint, in which all the moving Defendants (Hansell, De La Rocha, Jackson, Boeckmann, Hernandez, Svorinich, Bernson, Chick, and Ferraro) were named, was filed on April 19, 2000. It is undisputed that service was not actually effected on these Defendants until they were served by personal/substituted service on various dates between January 17 and 25, 2001. Thus, Defendants were not served until eight months after the filing of the Complaint, and four months after the Rule 4(m) deadline.
Plaintiff has filed Proofs of Service with the Court.
Defendants ask that, on this basis, all claims against them be dismissed, with prejudice. See Hansell Motion at 8; Hernandez Motion at 16. The Court declines to do so. While it is true a delay of eight months in serving these Defendants is excessive, Defendants cannot reasonably claim to have been unaware that this case, or other similar cases, was being brought (Plaintiffs have effected service on numerous other city and county Defendants). And although Plaintiffs have not offered "good cause" for their failure, the "waiver of service" argument has some weight.
Defendants at one point acknowledge that this Court would in any case only be empowered, under Rule 4 (in), to dismiss these claims without prejudice. Yet they nonetheless seek to have the claims dismissed with prejudice, pursuant to Rule 41(b), based on a lack of "reasonable diligence." Without further authority, the Court would not in any case be willing to assume that a dismissal for lack of timely service under Rule 4(m) could be prejudicial, and effectively "on the merits," as Defendants argue. Therefore, the Court at this point assumes that under Rule 4(m) it may only dismiss without prejudice. of course, such a dismissal would, in this case, have the same effect, given the statute of limitations obstacle(s) that Plaintiffs would face to any re-filing.
Given that the statute of limitations has run on Plaintiffs' claims, and that there is no demonstrable prejudice to Defendants from the untimely service of the summons and complaint, it seems a harsh remedy to dismiss, effectively forever, these claims. In the absence of a showing of "good cause," the Court exercises its discretion in determining whether to dismiss or merely require an effective service within a certain time. See, e.g., Matasareanu v. Williams, 183 F.R.D. 242, 245-48 (C.D. Cal. 1998).
Given that Defendants have now been served (over two months ago) with the Second Amended Complaint, the Court is left with only dismissal as an available remedy. This is an inappropriate remedy in this circumstance. This Court is not willing to bar Plaintiffs from ever prosecuting these claims. Thus, both Motions to Dismiss are also DENIED on this basis.
It appears that the fact that Plaintiffs would be barred by the statute of limitations from bringing these claims again may on its own constitute "good cause" under Rule 4 (in), though in some ways this may turn a timely service requirement on its head (i.e., a plaintiff who delays service past the limitations period may be excused from effecting timely service). See, e.g., Tyson v. City of Sunnyvale, 159 F.R.D. 528, 530 (N.D. Cal. 1995). See Vinegar v. United States Marshals Service, 1996 WL 227860, *6-8 (S.D. Cal. 1996). This proposition may have been tentatively endorsed in De Tie v. Orange County, 152 F.3d 1109, 1112 n. 5 (9th Cir. 1998). The Court need not reach it here.
For the sake of clarity, the Court notes that this ruling applies to all moving Defendants: Hansell, De La Rocha, Jackson, Boeckmann, Hernandez, Svorinich, Bernson, Chick, and Ferraro.