Scott Joseph Wallace v. Cellco Partnership et al

Filing 56

ORDER TO SHOW CAUSE by Magistrate Judge Alka Sagar. IT IS HEREBY ORDERED THAT Plaintiff shall, within thirty (30) days from the date of this Order, show cause in writing why these actions should not be dismissed without prejudice against Chief Beck and Harris and why Wallace II should not be dismissed without prejudice against Mayor Garcetti, for failure to effect service of process within the time specified in Fed. R. Civ. P. 4(m). (See Order for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SCOTT JOSEPH WALLACE,
Plaintiff,

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v.
CELLCO PARTNERSHIP, et al.,
Defendants.

) NO. CV 14-8052 DSF (AS);
) NO. CV 15-8680 DSF (AS)
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) ORDER TO SHOW CAUSE
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On October 17, 2014, in case no. CV 14-8052 DSF (AS) (“Wallace
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I”), pro se plaintiff Scott Joseph Wallace (“Plaintiff”) filed a
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Complaint against the following defendants: (1) the City of Los Angeles
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(“City”); (2) the Los Angeles Police Department (“LAPD”); (3) LAPD
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Chief Charlie Beck, in his individual and official capacities; (4)
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Cellco Partnership dba Verizon (“Verizon”); (5) AT&T, Inc.; (6) Harris
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Wireless Products Group, Inc. (“Harris Wireless”); (7) the Federal
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Bureau of Investigation (“FBI”); and (8) former Los Angeles County
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Sheriff Lee Baca.

On December 17, 2014, AT&T, Inc., filed a Motion to

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Dismiss the Complaint for lack of personal jurisdiction, which the
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Court granted on February 9, 2015, dismissing AT&T, Inc., from the
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action without leave to amend.

The Court also sua sponte dismissed

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Plaintiff’s claims against the FBI, LAPD, and Chief Beck and former

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Sheriff Baca in their official capacities without leave to amend,

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dismissed Plaintiff’s claims under 18 U.S.C. §§ 241 and 3121 without

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leave to amend, and dismissed the remainder of Plaintiff’s Complaint

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with leave to amend.

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On April 24, 2015, Plaintiff filed a First Amended Complaint in

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Wallace I against Verizon, Harris Corp. (“Harris”), AT&T Mobility LLC

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(“AT&T”), the City, Chief Beck in his individual capacity, and Does

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1-10.

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with leave to amend.

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Complaint in Wallace I against Verizon, Harris, AT&T, the City, Chief

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Beck in his individual capacity, and Does 1-10.

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Amended Complaint in Wallace I remains pending.

On May 8, 2015, the Court dismissed the First Amended Complaint
On June 8, 2015, Plaintiff filed a Second Amended

Plaintiff’s Second

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On March 4, 2015, Plaintiff filed a Complaint in Los Angeles

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County Superior Court against various defendants (“Superior Court

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action”).

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Dkt. No. 1, Declaration of Elizabeth Greenwood (“Greenwood Decl.”), ¶¶

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1-2, Exh. 1).

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Complaint in the Superior Court action against Verizon, Harris, AT&T,

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the City, Mayor Eric Garcetti, Chief Beck and Does 1-10.

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Decl., ¶¶ 1-2, Exh. 6).

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was removed to this Court and assigned case no. CV 15-8680 DSF (AS)

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(“Wallace II”).

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Complaint in Wallace II against Verizon, Harris, AT&T, the City, Mayor

(Wallace v. Cellco Partners, et al., CV 15-8680 DSF (AS),

On May 18, 2015, Plaintiff filed a First Amended

(Greenwood

On November 6, 2015, the Superior Court action

On March 21, 2016, Plaintiff filed a Second Amended

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Garcetti, Chief Beck and Does 1-10.

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Plaintiff’s Second Amended

Complaint in Wallace II remains pending.

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At the time Plaintiff filed Wallace I and Wallace II, Rule 4(m) of

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the Federal Rules of Civil Procedure provided, in pertinent part, that

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"[i]f a defendant is not served within 120 days after the complaint is

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filed, the court – on motion or on its own after notice to the

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plaintiff – must dismiss the action without prejudice against that

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defendant or order that service be made within a specified time.” Fed.

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R. Civ. P. 4(m) (2015).1

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Wallace II, it appears that Plaintiff has failed to serve Chief Beck or

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Harris in either case and Mayor Garcetti in Wallace II.2

Having reviewed the records in Wallace I and

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Accordingly, IT IS HEREBY ORDERED THAT Plaintiff shall, within

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thirty (30) days from the date of this Order, show cause in writing why

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these actions should not be dismissed without prejudice against Chief

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Beck and Harris and why Wallace II should not be dismissed without

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prejudice against Mayor Garcetti, for failure to effect service of

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process within the time specified in Fed. R. Civ. P. 4(m).

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file timely a written response to this Order may result in dismissal of

Failure to

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Effective December 1, 2015, Rule 4(m) was amended to shorten the
time limit for service from 120 days to 90 days. See Fed. R. Civ. P.
4(m) (2016).
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In Wallace I, Plaintiff filed a Proof of Service of Summons as
to Harris Wireless, purportedly a California Corporation, but not as to
Harris, purportedly a Florida corporation. (See Wallace I, Dkt. No.
13, Complaint ¶ 10 (Harris Wireless is a California corporation), SAC
¶ 32 (Harris is a Florida corporation)).
And even as to Harris
Wireless, the Court previously noted that Plaintiff’s proof of service
was deficient. (See Wallace I Dkt. No. 15 at 1).
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this action against defendants Mayor Garcetti, Chief Beck and Harris

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for failure to effect service of process within the time specified by

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Rule 4(m) of the Federal Rules of Civil Procedure and for failure to

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prosecute.

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DATED: August 4, 2016

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/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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