Gomez et al v. Arizona, State of et al

Filing 77

ORDER denying 4 Plaintiffs' MOTION for U.S. Marshals to serve Defendant Terri Clarke. Signed by Judge David G Campbell on 2/21/17.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ramon Gomez, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-16-04228-PHX-DGC

State of Arizona, et al.,

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Defendants.

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Plaintiffs Raymond Gomez, Tony Gomez, Maria Helena Gomez, Maria Luz

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Gomez Caballero, Jesus Gomez, Catalina Gomez, Maria Consuelo Gomez, and Felicia

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Rea Gomez collectively have filed a document titled “Motion: Obstructing Justice by

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Interfering with Federal Process Server.” Doc. 4. Defendant Maricopa County Superior

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Court Commissioner Terri Clark opposes the motion. Doc. 24. The motion will be

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denied.

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On December 6, 2016, Plaintiffs, through a federal process server, attempted to

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serve Defendant Clarke with a summons and complaint at “the Maricopa County

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Superior Court.” Doc. 4, ¶ 3. The process server identified himself and his purpose, and

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Defendant Clarke ordered a sheriff’s deputy on duty to remove the process server from

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the building, thus preventing service. Id. The process server attempted service twice

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more over the following two days, and Defendant Clarke refused service each time. Id.

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On December 9, 2016, Plaintiffs filed this motion, alleging that the actions of

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Defendant Clarke constitute obstruction of justice, and move the Court to: “(1) Order US

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Marshall [sic] to serve defendant Terri Clarke, (2) Issue warrant for the arrest of

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Commissioner Terri Clarke, (3) Enter a default judgment in part related to Defendant

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Commissioner Terri Clarke.” Id., ¶ 6. On December 27, 2016, Defendant Clarke filed a

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response, contemporaneously with the filing of a motion to dismiss on behalf of all

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Defendants. Doc. 24. Defendant Clarke states in the response that she “submits to the

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jurisdiction of the Court.”

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As an initial matter, the Court cannot conclude that avoiding service of a civil

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complaint is ground for a criminal charge of obstruction, nor is the Court empowered to

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bring a criminal charge of obstruction. Avoidance of process is dealt with procedurally.

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Federal Rule of Civil Procedure 4(e) provides that “unless federal law provides

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otherwise, an individual . . . may be served in a judicial district of the United States by:

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(1) following state law for serving a summons in an action brought in courts of general

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jurisdiction in the state where the district court is located or where service is made.”

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Fed. R. Civ. P. 4(e)(1). Under Arizona law, if personal service is impracticable, a party

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may move the Court to allow alternative service. Ariz. R. Civ. P. 4.1(k). Thus, in the

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event that a defendant avoids service, the proper action is for the plaintiff to seek an

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alternative form of service from the Court, not an arrest warrant.

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Second, default judgment is not appropriate. Typically, default is sought by a

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party under Rule 55 after the opposing party has failed to appear, plead, or otherwise

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defend against a complaint within the time allowed under by the rules. See Fed. R. Civ.

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P. 55. The Court may also grant default against a party under Rule 37(b) for failing to

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comply with a court order. But such relief is extreme and disfavored. NewGen, LLC v.

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Safe Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016) (“[T]he general rule [is] that default

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judgments are ordinarily disfavored. Cases should be decided upon their merits whenever

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reasonably possible.”). Defendant Clarke has appeared and submitted to the jurisdiction

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of the Court. Default judgment is not warranted.

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Lastly, Plaintiffs ask the Court to order service by U.S. Marshals. Doc. 4, ¶ 6.

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Because Defendant Clarke has submitted to the jurisdiction of the Court (Doc. 24 at 2),

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service is no longer necessary.

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IT IS ORDERED that Plaintiffs’ motion (Doc. 4) is denied.

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Dated this 21st day of February, 2017.

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