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denying request to provide plaintiffs with home addresses of police officers, relying on eight other district court opinions with same holding
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Case No. CV 00-01472 MMM (BQRx)
July 23, 2001
ORDER DENYING MOTION OF DEFENDANTS BLACK AND WEBSTER TO DISMISS ACTION AND GRANTING MOTION TO QUASH SERVICE
This motion concerns plaintiffs' attempts to serve summons and complaint on defendants James Black and Lawrence Webster ("the federal defendants"). Pursuant to Rules 12(b)(2) and 12(b)(5) of the Federal Rules of Civil Procedure, Black and Webster move to dismiss the first amended complaint. They assert that (1) plaintiffs failed to serve the United States properly as required by Rule 4(i)(2)(B) of the Federal Rules of Civil Procedure; (2) plaintiffs failed to serve them personally using one of methods authorized by Rule 4(e); and (3) plaintiffs failed to effect service on them within 120 days of the filing of the complaint as required by Rule 4(m). Black and Webster contend that plaintiffs long failure to serve them with process constitutes a failure to prosecute the action that justifies dismissal under Rule 41(b).
I. FACTUAL BACKGROUND
Plaintiffs D. Motley and J. Jamerson filed this action on February 10,2000, alleging violations of their constitutional rights pursuant to 42 U.S.C. § 1983 and 1985(3). Plaintiffs assert that officers of the Los Angeles Police Department ("LAPD"), a state parole agent, and agents of the Bureau of Alcohol, Tobacco and Firearms ("BATF") illegally entered and searched their home, and unlawfully arrested them. Plaintiffs' § 1983 claims assert that defendants violated and conspired to violate their Fourth and Fourteenth Amendment rights to be free from unreasonable searches and seizures, and not to be subjected to unreasonable and excessive force. Their § 1985(3) claim alleges that defendants conspired to violate their right to equal protection of the laws by discriminating against them on the basis of race.
II. PROCEDURAL BACKGROUND
On December 11, 2001, the court granted plaintiffs motion to amend their complaint to set forth the true names of certain fictitiously named defendants. Pursuant to this order, plaintiffs filed a first amended complaint naming BATF agents Black and Webster as defendants on December 15, 2000. The court directed that plaintiffs serve Black and Webster within thirty days. On January 19, 2001, plaintiffs filed purported proofs of service on the federal defendants. They reflect that process server Miguel Recendez served the federal defendants on January 16,2001 by leaving copies of the summons and complaint with security guard "John Doe" at the World Trade Center ("WTC"), 350 S. Figueroa Street, Los Angeles, California, and by mailing copies of the documents to defendants at the same address by first class mail. In due diligence declarations filed with the proofs of service, Recendez states that he attempted to serve the federal defendants personally on January 12,2001 at the WTC, but the building security guard would not let him access the floor where he believed defendants were located. Recendez attempted personal service again on January 16, 2001, but was again denied access to the floor. He then left the summons and complaint with the security guard.
On March 8, 2001, plaintiffs' attorney, Stephen Yagman, filed a declaration stating that he had "completed service of the summonses and first amended complaints on defendants James Black and Lawrence Webster by (1) serving the United States Attorney for the Central District of California and (2) mailing [copies], by certified mail, return receipt requested, . . . to the Attorney General."
In connection with the present motion, Webster has filed a declaration, stating: "I have been advised that the Plaintiff attempted to serve me with process at the 8th Floor of the building located at 350 S. Figueroa Street, Los Angeles, California in January 2001. Since approximately the middle of August 2000, however, my office was located in the Santa Ana, California field office of the BATF and not the Figueroa Street location. . . . To the best of my knowledge and belief, the private security guards at the Figueroa Street location have no connection with the BATF. I have never authorized any security guard to accept service of process on my behalf.
March 6,2001 Declaration of Stephen Yagman ("Mar. 6 Yagman Decl."), ¶ 1. The court notes that the declaration is technically improper as Yagman did not sign it. 28 U.S.C. § 1746 requires that unsworn declarations under penalty of perjury be signed. Because the federal defendants do not challenge the declaration on this basis, and do not dispute the statements set forth therein, the court has considered the document in ruling on the motion. As respects Yagman's statement that he served the Attorney General by certified mail, the court notes that the return receipt for the mailing is not attached to his declaration. Once again, however, the federal defendants do not contest Yagman's statements in this regard.
Declaration of Larry Webster ("Webster Decl."), ¶¶ 2, 3.
Black filed a similar declaration, while Assistant United States Attorney David Pinchas declares that "the Plaintiffs used regular mail, not certified or registered mail" to serve the United States Attorney for the Central District of California, in alleged violation of Rule 4(i)(2)(B).
Declaration of James Black ("Black Decl."), ¶¶ 2, 3. Black did not move to the Santa Ana field office until May 2001 (id., ¶ 2.), and does not indicate where his office was located in January 2001. He does, however, state that, during January 2001, "my office was not on the 8th floor of that building [the WTC]." (Id.)
Declaration of David Pinchas ("Pinchas Decl."), ¶ 2.
III. DISCUSSION
A. Legal Standard Governing Establishment Of Proper Service
"A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Fed.R.Civ.P. 4." Direct Mail Specialists v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (citing Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982)). While "Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint" (United Food Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984)), "neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction" absent substantial compliance with its requirements (Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986)).
"When service of process is challenged, the party on whose behalf it is made must bear the burden of establishing its validity." Aetna Business Credit, Inc. v. Universal Decor Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981) (citing Familia de Boom v. Arosa Mercantil, S. A., 629 F.2d 1134, 1139(5th Cir. 1980). See also Rogers v. Federal Bureau of Investigation, 1994 WL 715652, * 2 N.D. Cal. Dec. 15, 1994) (same); FED.R.CIV.PROC. 4(1) ("If service is not waived, the person effecting service shall make proof thereof to the court").
B. Plaintiffs Have Not Established That They Properly Served The Federal Defendants
Rule 4(i)(2)(B) provides:
"Service on an officer or employee of the United States sued in an individual capacity for acts or omissions occurring in connection with the performance of duties on behalf of the United States — whether or not the officer or employee is sued also in an official capacity — is effected by serving the United States in the manner prescribed by Rule (i)(1) and by serving the officer or employee in the manner prescribed by Rule 4(e), (f), or (g)." FED.R.CIV.PROC. 4(i)(2)(B).
1. Failure To Serve The United States Attorney By Certified Or Registered Mail
The federal defendants argue that "Plaintiffs never completed service because they did not serve the United States Attorney by certified or registered mail as required by Rule 4(i)(1)(A) and (2)(B)." Specifically, defendants assert that plaintiffs served the process clerk by regular, rather than certified or registered, mail. Plaintiffs provide no proof to the contrary.
Defendants' Memorandum of Points and Authorities ("Defs.' Mem."), 5:6-10.
Rule 4(i)(1) states:
1) Service upon the United States shall be effected
(A) by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court or by sending a copy of the summons and of the complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney and
(B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia. . . ." FED.R.CIV.PROC. 4(i)(1).
Because plaintiffs did not serve the United States Attorney for the Central District of California in a manner authorized by Rule 4(i)(1)(A), their purported service of federal defendants Black and Webster is not effective under Rule 4(i)(2)(B).
2. Failure To Serve The Federal Defendants Individually
Rule 4(e)(1) of the Federal Rules of Civil Procedure states that "service upon an individual . . . may be effected . . . (1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State. . . ." Pursuant to California Civil Procedure Code § 415.20:
"In lieu of personal delivery of a copy of the summons and of the complaint to the person to be served . . ., a summons may be served by leaving a copy of the summons and of the complaint during usual office hours in his or her office with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left." CAL. CODE Civ. PROC. § 415.20(a).
Plaintiffs' proofs of service on the federal defendants suggest that they attempted to effect substituted service by leaving copies of the summons and complaint with a security guard at the WTC. This service was ineffective as to Webster, however, because his office was located in Santa Ana at the time. As respects Black, it is not clear where he officed in January 2001. Black, however, states that "the private security guards at the Figueroa Street location have no connection with the BATF," and that he has "never authorized any security guard to accept service of process on [his] behalf." Black also asserts that "[t]he security guards . . . do not limit access to any BATF offices or elevators but, rather, . . . sit at a desk in the lobby of the Figueroa Street building." Given these facts, it does not appear that the "John Doe" security guard with whom Recendez left the summons and complaint was a "person . . . apparently in charge" of Black's office.
Webster Decl., ¶ 2.
Black Decl., ¶ 3.
Id.
Id.
Because they did not serve the federal defendants in the manner prescribed by Rule 4(e), plaintiffs have not failed to effect service on them pursuant to Rule 4(i)(2)(B). At a minimum, therefore, defendants' motion to quash service of summons must be granted.
C. Legal Standard Governing Motions To Dismiss Under Rule 4(m)
A defendant who challenges the timeliness of service under Rule 4(m) may move to dismiss the complaint against him on this basis. FED.R.CIV.PROC. 4(m) ("the court, upon motion or on its own initiative after notice to the plaintiff shall dismiss the action without prejudice" (emphasis added)). Dismissal is mandatory if plaintiff fails to show good cause for the untimely service. See Hamilton v. Endell, 981 F.2d 1062. 1065 (9th Cir. 1992).
D. The Court Will Extend The Time For Service Under Rule 4(m)
Rule 4(m) of the Federal Rules of Civil Procedure provides:
"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.PROC. 4(m).
Plaintiffs filed their first amended complaint naming the federal defendants on December 15, 2000. The 120-day period set forth in Rule 4(m) thus expired on April 16, 2000. At approximately that time, the court issued an order to show cause why the action against the federal defendants should not be dismissed for lack of prosecution. Shortly thereafter, counsel spoke telephonically, and plaintiffs' attorney learned of the federal defendants intention to file the present motion to dismiss.
Plaintiffs had an additional two days to effect service because the 120-day period ended on a Saturday. See FED.R.CIV.PROG. 6(a).
Plaintiffs' April 26, 2001 Response to April 12, 2001 Order to Show Cause, ¶ 1.
It is possible that, prior to the expiration of the 120-day period, plaintiffs counsel mistakenly believed that he had effected service on the federal defendants. At a minimum, the record shows that plaintiffs made good faith efforts to serve the federal defendants personally on January 12 and 16,2001, as they might reasonably have expected to serve defendants at the BATE office in the WTC. Plaintiffs also appear to have made good faith attempts to effect service on the United States Attorney for this district and the United States Attorney General. See FED.R.CIV.PROC. 4, 1993 Advisory Committee Notes ("A specific instance of good cause is set forth in paragraph (3) of [Rule 4(i)], which provides for extensions if necessary to correct oversights in compliance with the requirements of multiple service in actions against the United States or its officers, agencies. and corporations"). Compare T S Rentals v. United States, 164 F.R.D. 422, 425-26 (N.D. W. Va. 1996) ("The only explanation for the delay in service offered by the plaintiffs is the supposed complexities of complying with Fed.R.Civ.P. 4(i), which governs service of process on government agencies and requires that a plaintiff who is suing an agency, officer, or corporation of the United States effect service upon the United States Attorney for the judicial district in which the proceedings are commenced, the Attorney General of the United States, and the agency or officer whose ruling or order is being challenged. . . . Neither the United States Attorney for the Northern District of West Virginia nor the Attorney General was served within the 120 day period. Both were served on the 121st day. The complexities of compliance with Rule 4(i), therefore, did not cause the failure of the plaintiffs to effect service in the present case"). This is sufficient to support a finding of good cause for an extension of the 120-day period. Cf. La Bounty v. Lee, 1994 WL 378479, * 2 (N.D.N.Y. July 15, 1994) ("There are no set guidelines for what constitutes 'good cause' under Rule 4(m)").
While plaintiffs here are not entitled to invoke Rule 4(i)(3)(B), as they did not properly serve the individual federal defendants, the rule is nonetheless instructive in suggesting whether there is good cause to extend the 120-day period in this case. See FED.R.CIV.PROC. 4(i)(3)(B) ("The court shall allow a reasonable time to serve process under Rule 4(i) for the purpose of curing the failure to serve: . . . the United States in an action governed by Rule 4(i)(2)(B), if the plaintiff has served an officer or employee of the United States sued in an individual capacity").
Even were this not the case, however, Rule 4(m) "authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown." FED.R.CIV.PROC. 4, 1993 Advisory Committee Notes. See also In re Sheehan, 253 F.3d 507, 2001 WL 682453 (9th Cir. June 19, 2001) (page references not yet available) ("Courts have discretion under Rule 4(m), absent a showing of good cause, to extend the time for service or to dismiss the action without prejudice"); Petrucelli v. Bohringer Ratzinger GmBH Ausdereitungsanlagen, 46 F.3d 1298, 1305 (3d Cir. 1995) ("We read the new rule . . . to allow a court discretion to dismiss or extend time absent a showing of good cause"); Espinoza v. United States, 52 F.3d 838, 840-41 (10th Cir. 1995) ("The plain language of Rule 4(m) . . . broadens the district court's discretion by allowing it to extend the time for service even when the plaintiff has not shown good cause"); Schwarzer, Tashima Wagstaffe. CALIFORNIA PRACTICE GUIDE: FEDERAL CIVIL PROCEDURE BEFORE TRIAL § 5:273 (2000) ("The court is authorized to relieve a plaintiff of the consequences of untimely service even if there is no showing of "good cause" for the delay in service").
"Relief may be justified, for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service." FED.R.CIV.PROC. 4, 1993 Advisory Committee Notes. While the court should avoid prejudicing the defendant, an extension of the time within which to effect service that denies the defendant the benefit of the statute of limitations does not constitute cognizable prejudice. See Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997) ("Interpreting this rule, under which the court may extend the time for service to avoid the bar of limitations, to authorize the court to refuse to extend it so the defendant may gain the benefit of that bar appears to us to be inconsistent with its purpose"); Goodstein v. Bombardier Capital, Inc., 167 F.R.D. 662, 666-67 (D. Vt. 1996) (extending time in part to prevent plaintiffs case from being barred).
The Ninth Circuit has found it "unnecessary . . . to articulate a specific test that a court must apply in exercising its discretion under Rule 4(m)," and has "note[d] only that, under the terms of the rule, the court's discretion is broad." In re Sheehan, supra, 253 F.3d 507, 2001 WL 682453. District courts in the Ninth Circuit have exercised their discretion to extend the time for service where defendants "have not suffered any prejudice resulting from the delay" and where the extension will give plaintiffs "an opportunity to litigate the merits of this action, a desirable goal." Matasareanu v. Williams, 183 F.R.D. 242,247 (C.D. Cal. 1998). Defendants have not demonstrated that they will suffer prejudice if the time for service is extended in this case. After the filing of the first amended complaint, the court vacated the dates previously set, and scheduled a further status conference for June 11, 2001. Counsel for the federal defendants participated in that conference, and thus had input concerning the pretrial schedule that was established. Moreover, substantial time remains before the discovery cut-off date set by the court; thus, the federal defendants will have ample opportunity to prepare their defense for trial. Moreover, extending plaintiffs' time to serve Webster, Black and the United States Attorney for this district will avoid the potential statute of limitations problems that would arise if Webster and Black were dismissed without prejudice from this suit. See Petrucelli, supra, 46 F.3d at 1306 n. 8. Given that the federal defendants have had notice of the suit, and that they will have adequate time to mount a defense, the court concludes that it is preferable to resolve plaintiffs' claims against them on the merits. It therefore denies the federal defendants motion to dismiss on grounds of insufficient service of process.
Plaintiffs apparently made a further attempt to serve the United States Attorney for the Central District of California by sending a copy of summons and complaint to AUSA Pinchas via certified mail on July 2, 2001. (Defendants' Reply, 3:5-24.) Because Pinchas is not a civil process clerk or person "designated by the United States Attorney in a writing filed with the clerk of the court" to receive process (FED.R.CIV.PROC. 4(i)(1)(A)), this mailing did not effect service on the United States Attorney.
E. Standard Governing Dismissal Under Rule 41(b)
The federal defendants also argue that "the long failure to serve the[m] . . . constitutes a failure to prosecute the action sufficient to justify dismissal pursuant to Rule 41(b)." Rule 41(b) provides:
Defs.' Mem., 2:10-13.
"For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." FED.R.CIV.PROC. 41(b).
The Ninth Circuit has directed that courts considering requests for dismissal under this rule weigh several factors: the public's interest in the expeditious resolution of litigation; the court's need to manage its docket; the risk of prejudice to the defendants; the public policy favoring disposition of cases on their merits; and the availability of less drastic sanctions. Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir. 1996) (citing Thompson v. Housing Authority of Los Angeles, 782 F.2d 829, 931 (9th Cir.) (per curiam), cert. denied, 479 U.S. 829 (1986)); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.), cert. denied, 506 U.S. 915 (1992). Dismissal is a "harsh penalty," and should be employed only in "extreme circumstances." Ferdik, supra, 963 F.2d at 1260. See also Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998); Dahl, supra, 84 F.3d at 366; Thompson, supra. 782 F.2d at 831.
There is no evidence of lack of prosecution in this case. Plaintiffs have made several attempts to serve the federal defendants and to ensure that they had notice of the action. Extending the time for service will not require that the court adjust the case management dates presently in effect and thus will not interfere with its efforts to control its docket. As noted, there is no showing of prejudice to defendants, and affording plaintiffs additional time to serve Black and Webster will have the salutory effect of permitting resolution of their claims against these defendants on the merits. Applying the relevant factors, the court concludes that a dismissal under Rule 41(b) is not warranted in this case.
III. CONCLUSION
For the foregoing reasons, the court denies the motion of defendants James Black and Lawrence Webster to dismiss the action against them without prejudice. The court grants the motion to quash service on Black and Webster. Plaintiffs are directed to complete service on Black and Webster within thirty days of the date of this order.
Pursuant to Local Rule 7.6, plaintiffs' opposition was due on July 9, 2001. Plaintiffs filed their opposition late, on July 13, 2001, arguably because they were under the mistaken impression that the parties had resolved the service issue informally. The letters attached to plaintiff's opposition suggest that such a belief might have been reasonable formed. Given the circumstances, the court declines to strike plaintiffs' untimely opposition, as the federal defendants request, and deem it consent to the granting of the motion.