Stephan Brooks v. Paco-Michelle Atwood et al

Filing 68

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge John F. Walter 67 . The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Judgment be entered: (1) dismiss ing the action against the non-appearing Defendants without prejudice in accordance with this Order; and (2) otherwise dismissing the action in accordance with the previous Orders filed 6/20/16 and 1/5/17. (Attachments: # 1 Report and Recommendation) (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 STEPHAN BROOKS, et al., ) NO. CV 15-7724-JFW(E) ) Plaintiff, ) ) v. ) REPORT AND RECOMMENDATION OF ) PACO-MICHELLE ATWOOD, et al., ) UNITED STATES MAGISTRATE JUDGE ) ) Defendants. ) ______________________________) 17 18 This Report and Recommendation is submitted to the Honorable 19 John F. Walter, United States District Judge, pursuant to 28 U.S.C. 20 section 636 and General Order 05-07 of the United States District 21 Court for the Central District of California. 22 23 BACKGROUND 24 25 Plaintiff Stephan Brooks filed this action individually and as: 26 (1) alleged successor trustee to the Sireaner Townsend Revocable 27 Living Trust dated June 22, 2004 (“Trust”); (2) alleged sole 28 beneficiary of the Trust; (3) alleged sole heir of the Sireaner 1 Townsend Pour Over Will dated June 22, 2004; and (4) alleged heir to 2 the estate of Sherrell Atwood. 3 family dispute concerning residential real property which resulted in 4 state court litigation, including a probate case concerning the 5 Sherrell Atwood estate (“Estate Case”), a “Trust Case,” a “Will 6 Contest Case” and a “Partition Case.” Plaintiff’s claims arise out of a 7 8 The original Complaint purported to state civil rights claims and 9 state law claims against: (1) Plaintiff’s sister Paco-Michelle Atwood, 10 individually and as alleged administrator of the estate of Sherrell 11 Atwood; (2) Chrisangela Walston, allegedly an attorney for Atwood in 12 the “Estate Case” and the “Partition Case”; (3) L’Tanya M. Butler, 13 allegedly an attorney for Atwood in the state court cases; (4) Maurice 14 Smith, Clifford Townsend, Jr. and Steven Townsend, the three 15 petitioners in the “Trust Case” and “Will Contest” cases; (5) Guy 16 Leemhuis, allegedly the attorney for Smith and the two Townsends; 17 (6) Jonnie Johnson Parker, allegedly the attorney for Plaintiff 18 individually and as alleged successor trustee in the “Trust Case”; and 19 (7) ten fictitious “Doe” Defendants. 20 Plaintiff alleged that the Defendants named in that pleading conspired 21 with lawyers and judges to deprive Plaintiff of the right to the 22 property, which allegedly previously was owned jointly by Plaintiff’s 23 mother, Sherrell Atwood, and grandmother, Sireaner Townsend, both now 24 deceased. In the original Complaint, 25 26 On December 8, 2015, Defendants Atwood, Butler and Walston filed 27 a motion to dismiss the Complaint. On January 8, 2016, Plaintiff 28 filed an opposition to that motion. 2 On January 19, 2016, the Court 1 issued an “Order Dismissing Complaint With Leave to Amend,” dismissing 2 the Complaint with leave to amend and permitting Plaintiff to file a 3 First Amended Complaint. 4 5 Plaintiff did not file a First Amended Complaint by the deadline 6 set in the January 19, 2016 Order. Accordingly, on March 3, 2016, the 7 Magistrate Judge issued a Report and Recommendation recommending 8 dismissal of the action without prejudice for failure to prosecute. 9 10 On March 21, 2016, Plaintiff filed objections to the Report and 11 Recommendation. On March 22, 2016, the Magistrate Judge issued a 12 Minute Order withdrawing the Report and Recommendation and extending 13 the time within which Plaintiff could file a First Amended Complaint. 14 Plaintiff filed a First Amended Complaint on April 5, 2016, naming the 15 original Defendants and adding two new Defendants: (1) Los Angeles 16 County Superior Court Executive Officer/Clerk Sherri Carter; and 17 (2) Joseph A. Lane, Clerk of the California Court of Appeal, Second 18 District. 19 20 On April 7, 2016, Defendants Atwood, Butler and Walston filed a 21 motion to dismiss the First Amended Complaint. 22 Plaintiff filed an opposition to this motion. 23 Magistrate Judge issued a Report and Recommendation recommending that 24 the Court: (1) dismiss the First Amended Complaint and the action as 25 against private party Defendants Atwood, Walston, Butler, Maurice 26 Smith, Clifford Townsend, Jr., Steven Townsend, Guy A. Leemhuis, and 27 /// 28 /// 3 On May 4, 2016, On May 13, 2016, the 1 Jonnie Johnson Parker,1 with prejudice with respect to the federal 2 claims; and (2) decline to exercise supplemental jurisdiction over the 3 state law claims against the private party Defendants and dismiss 4 those state law claims against the private party Defendants without 5 prejudice. 6 7 On May 17, 2016, Defendants Carter and Lane filed a Motion to 8 Dismiss the First Amended Complaint. 9 On June 16, 2016, Plaintiff filed an Opposition. 10 11 On June 20, 2016, the District Judge issued an “Order Accepting 12 Findings, Conclusions and Recommendations of United States Magistrate 13 Judge.” 14 and Recommendation, dismissing from the action all Defendants other 15 than Defendants Carter and Lane. This Order adopted the Magistrate Judge’s May 13, 2016 Report 16 17 On June 28, 2016, the Magistrate Judge issued a Report and 18 Recommendation addressing the Motion to Dismiss filed by Defendants 19 Carter and Lane and inter alia recommending dismissal of the First 20 Amended Complaint as against the Defendants with leave to amend. 21 Among other things, the Report and Recommendation advised Plaintiff 22 that the doctrine of quasi-judicial immunity shielded Defendants 23 Carter and Lane from liability for actions taken in their capacities 24 1 25 26 27 28 Although Defendants Maurice Smith, Clifford Townsend, Jr., Steven Townsend, Guy A. Leemhuis and Jonnie Johnson Parker had not appeared in the action, the same reasons supporting dismissal of the First Amended Complaint as against the appearing private party Defendants supported dismissal of the First Amended Complaint and the action as against Defendants Smith, Clifford Townsend, Jr., Steven Townsend, Leemhuis and Parker. 4 1 as court clerks when they perform tasks that are an integral part of 2 the judicial process. 3 “Order Accepting Findings, Conclusions and Recommendations of United 4 State Magistrate Judge,” dismissing the First Amended Complaint as 5 against Defendants Carter and Lane with leave to amend. On August 5, 2016, the District Judge issued an 6 7 On September 6, 2016, Plaintiff filed a Second Amended Complaint 8 against Defendants Carter and Lane, and adding as Defendants: (1) Los 9 Angeles County Superior Court Judges Beckloff, Cowan, Levanas and 10 Stratton; (2) California Court of Appeal Justices Epstein, Willhite 11 and Collins; and (3) the County of Los Angeles (“County”). 12 13 On September 21, 2016, Defendants Carter and Lane filed a Motion 14 to Dismiss the Second Amended Complaint. On October 21, 2016, 15 Plaintiff filed an Opposition to the Motion to Dismiss. 16 17 On November 29, 2016, the Magistrate Judge issued a Report and 18 Recommendation recommending the dismissal of the action as against 19 Defendants Carter and Lane without leave to amend and with prejudice 20 as to Plaintiff’s federal claims and without prejudice as to 21 Plaintiff’s state law claims. 22 issued an “Order Accepting Findings, Conclusions and Recommendations 23 of United States Magistrate Judge.” 24 Judge’s November 29, 2016 Report and Recommendation, dismissing from 25 the action Defendants Carter and Lane. On January 5, 2017, the District Judge This Order adopted the Magistrate 26 27 28 The only other Defendants named in the Second Amended Complaint are: (1) Los Angeles Superior Court Judges Mitchell L. Beckloff, David 5 1 J. Cowan, Michael I. Levanas and Maria E. Stratton; (2) California 2 Court of Appeal Justices Normal L. Epstein, Audrey B. Collins and 3 Thomas L. Willhite; and (3) the County of Los Angeles. 4 Defendants (“non-appearing Defendants”) None of these have appeared in this action. 5 6 On December 8, 2016, the Magistrate Judge filed a Minute Order 7 requiring Plaintiff to show cause, within thirty (30) days of the 8 December 8, 2016, why proper service of the Summons and Second Amended 9 Complaint was not made on the non-appearing Defendants in a timely 10 manner. The Minute Order advised Plaintiff that Plaintiff must 11 attempt to show such cause by filing a declaration, signed under 12 penalty of perjury. 13 failure to file such a declaration could result in the dismissal of 14 the action as to the non-appearing Defendants without prejudice. 15 Nevertheless, Plaintiff failed to respond to the Minute Order within 16 the allotted time. The Minute Order further advised Plaintiff that 17 DISCUSSION 18 19 20 Under Rule 4(m) of the Federal Rules of Civil Procedure, a court 21 may dismiss an action without prejudice if the summons and complaint 22 are not served on the defendant within 90 days after filing the 23 complaint or such further time as ordered by the court. 24 P. 4(m); see Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). 25 Rule 4(m) requires the Court to extend the time for service if a 26 plaintiff shows good cause for the failure to serve. 27 ‘good cause’ means excusable neglect.” 28 754, 756 (9th Cir. 1991). Fed. R. Civ. “At a minimum, Boudette v. Barnette, 923 F.2d A court has “broad discretion” to extend 6 1 the time for service under Rule 4(m), even absent a showing of good 2 cause. 3 States v. 2,164 Watches, More or Less, Bearing a Registered Trademark 4 of Guess?, Inc., 366 F.3d 767, 773 (9th Cir. 2004) (Rule 4(m) gives 5 courts “leeway to preserve meritorious lawsuits despite untimely 6 service of process”). 7 prejudice to the defendant, actual notice, a possible limitations bar, 8 and eventual service. 9 such dismissal should be without prejudice. See Efaw v. Williams, 473 F.3d at 1040-41; see also United A court may consider various factors including See Efaw v. Williams, 473 F.3d at 1041. Any See United States v. 10 2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, 11 Inc., 366 F.3d at 772. 12 13 Under Rule 4(m), this Court should dismiss the present action as 14 against the non-appearing Defendants without prejudice. 15 not demonstrated good cause for the failure to effect timely service 16 on these remaining Defendants, and no cause appears from the record. 17 Under the circumstances of this case, the Court should not exercise 18 its “broad discretion” to extend the time for service. 19 Grattan Township, 2007 WL 1108566, at *4 (W.D. Mich. April 10, 2007) 20 (observing that extension of the deadline for service on a defendant 21 who was the trial judge would be futile because claims against the 22 judge would be barred by the doctrine of judicial immunity). Plaintiff has See Kennedy v. 23 24 RECOMMENDATION 25 26 For all of the foregoing reasons, it is recommended that the 27 Court issue an Order: (1) accepting and adopting this Report and 28 Recommendation; (2) dismissing the action against the non-appearing 7 1 Defendants without prejudice; and (3) directing that Judgment be 2 entered dismissing the action in accordance with the present 3 recommended Order and the previous Orders filed June 20, 2016 and 4 January 5, 2017. 5 6 Dated: January 11, 2017. 7 8 9 10 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 1 2 NOTICE Reports and Recommendations are not appealable to the Court of 3 Appeals, but may be subject to the right of any party to file 4 objections as provided in the Local Rules Governing the Duties of 5 Magistrate Judges and review by the District Judge whose initials 6 appear in the docket number. 7 Federal Rules of Appellate Procedure should be filed until entry of 8 the judgment of the District Court. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No notice of appeal pursuant to the

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