Bonilla et al. v. California Highway Patrol, et al.

Filing 94

ORDER signed by District Judge Leslie E. Kobayashi on 4/22/2021 GRANTING 75 Motion to Dismiss, subject to the Highway Patrol's filing of the supporting documentation described in this Order. If the Highway Patrol's submission complies with this Order, this Court will issue an order directing the Clerk's Office to terminate Peterson as a party and to close this case. The affidavit or declaration must be filed by 5/7/2021. (Tupolo, A)

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IN THE UNTED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
GUILLERMO BONILLA, SANDRA
AMAYA BONILLA,

)
)
)
Plaintiffs,
)
)
vs.
)
)
CALIFORNIA HIGHWAY PATROL AN )
AGENEY OF THE STATE OF
)
CALIFORNIA; OFFER MCKENZIE
)
AND SGT. PETERSON and DOES 1 )
TO 50,
)
)
Defendants.
)
______________________________)

2:16-cv-01742 LEK

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
DEFENDANT PETERSON FOR FAILURE TO SERVE
Before the Court is Defendant California Highway

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Patrol (“Highway Patrol”) and Muriel McKenzie’s (“McKenzie” and

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collectively “Defendants”) Motion to Dismiss for Failure to

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Serve (“Motion”), filed on January 29, 2019.

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Plaintiffs Guillermo Bonilla and Sandra Amaya Bonilla

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(“Plaintiffs”) filed their memorandum in opposition on

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February 20, 2019, and Defendants filed their reply on March 5,

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2019.

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for disposition without a hearing pursuant to L.R. 230(g) of the

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Local Rules of the United States District Court for the Eastern

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District of California (“Local Rules”).

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forth below, Defendants’ Motion is hereby granted, subject to

[Dkt. nos. 79, 89.]

[Dkt. no. 75.]

The Court finds this matter suitable

For the reasons set

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the Highway Patrol’s filing of the supporting documentation

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described in this Order.
BACKGROUND

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Plaintiffs, who were proceeding pro se at the time,

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initiated this action in state court on November 24, 2015, and

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the Highway Patrol removed the case on July 25, 2016, based on

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federal question jurisdiction.

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Under 28 U.S.C. § 1441(a) (Federal Question) (“Notice of

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Removal”), filed 7/25/16 (dkt. no. 1), Exh. A (Complaint –

[Notice of Removal of Action;

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Personal Injury, Property Damage, Wrongful Death (“Complaint”));

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Notice of Removal at ¶¶ 4-5.]

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Sergeant Peterson (“Peterson”) were named as defendants in the

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Complaint, but they had not been served at the time of removal.

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[Complaint at pg. 1; Notice of Removal at ¶ 3.]

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Court ruled on the Highway Patrol’s motion to dismiss the

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original Complaint, Plaintiffs filed their First Amended

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Complaint (“Amended Complaint”) on March 16, 2017.

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(motion to dismiss), 23 (amended order ruling on the motion to

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dismiss), 29 (Amended Complaint).]

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the Highway Patrol, McKenzie, and Peterson as defendants.

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[Amended Complaint at ¶¶ 5-7.]

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I.

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McKenzie and Highway Patrol

After this

[Dkt. nos. 7

The Amended Complaint named

Service Issues
After the filing of the Amended Complaint, Plaintiffs

and the Highway Patrol reported that McKenzie and Peterson
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had both retired from the [Highway Patrol] at the
time the original Complaint was attempted to be
served on them at the [Highway Patrol]. Because
they had retired, the [Highway Patrol] would not
accept service of the Summons and Complaint on
their behalf. Plaintiff’s undersigned counsel
was then informed by the [Highway Patrol] that
the [Highway Patrol] would not provide the
addresses of defendants Officer McKenzie and Sgt.
Peterson, and Plaintiff’s undersigned counsel has
been unsuccessful in locating these two
defendants for service.

[Joint Status Report, filed 4/3/17 (dkt. no. 30), at ¶¶ 1-2.]

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Plaintiffs and the Highway Patrol submitted letter briefs that

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addressed their dispute about the provision of McKenzie’s and

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Peterson’s addresses.

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Plaintiffs’ counsel, dated 6/2/17 and 6/3/17, and counsel’s

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supplemental letter brief dated 6/12/17); dkt. no. 38 (letter

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brief by the Highway Patrol’s counsel, dated 5/30/17).]

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subsequent discovery conference, this Court ordered the Highway

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Patrol to provide McKenzie’s and Peterson’s addresses to

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Plaintiffs’ counsel by June 21, 2017.

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(dkt. no. 36).]

. . . .
Defendant California Highway Patrol was
served and has appeared. Officer McKenzie and
Sgt. Peterson have not been served. Plaintiff’s
counsel is in the process of propounding
discovery requests to Defendant California
Highway Patrol to obtain the addresses of Officer
McKenzie and Sgt. Peterson so that the Summons
and the First Amended Complaint can be served on
them.

[Dkt. no. 37 (letter briefs by

[Minutes, filed 6/14/17

McKenzie was served on August 4, 2017.
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At a

[Return

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of Service, filed 9/1/17 (dkt. no. 39.]

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served.

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II.

Peterson has never been

Representation Issues

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As previously stated, Plaintiffs initiated this action

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pro se.

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as of September 1, 2016.

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Plaintiffs and Order, filed 9/1/16 (dkt. no. 11).]

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September 28, 2017, Mr. Zal filed a motion to withdraw as

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Plaintiffs’ counsel, and the motion was granted in an

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Cyrus Zal, Esq., became Plaintiffs’ counsel of record
[Substitution of Attorney by

October 17, 2017 minute order.

On

[Dkt. nos. 44, 48.]

On June 11, 2018, Mr. Zal again became Plaintiffs’

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counsel of record.

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Attorney, filed 6/11/18 (dkt. no. 57) (as to Guillermo Bonilla);

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Consent Order Granting Substitution of Attorney, filed 6/11/18

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(dkt. no. 58) (as to Sandra Bonilla).]

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Plaintiffs since that time.

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III. The Motion

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[Consent Order Granting Substitution of

Mr. Zal has represented

In the instant Motion, Defendants seek dismissal of

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Plaintiffs’ claims against Peterson because they failed to

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complete service upon him within ninety days after the filing of

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the Amended Complaint.

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grounds that: 1) the Highway Patrol failed to comply with this

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Court’s order at the June 14, 2017 discovery conference; and

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2) the unusual circumstances created by Plaintiffs’

Plaintiffs oppose the Motion on the

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representation history excuse their failure to complete service

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on Peterson in a timely manner.
DISCUSSION

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Fed. R. Civ. P. 4(m) states, in pertinent part:
If a defendant is not served within 90 days after
the complaint is filed, the court -- on motion or
on its own after notice to the plaintiff -- must
dismiss the action without prejudice against that
defendant or order that service be made within a
specified time. But if the plaintiff shows good
cause for the failure, the court must extend the
time for service for an appropriate period.
This district court has stated:

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Rule 4(m) requires a “two-step analysis” for
determining relief. In re Sheehan, 253 F.3d 507,
512 (9th Cir. 2001). First, the district court
“must extend the time period” for service upon a
showing of good cause. Id. When determining
whether the good cause requirement has been
satisfied, the court must consider whether:
“(a) the party to be served personally received
actual notice of the lawsuit; (b) the defendant
would suffer no prejudice; and (c) plaintiff
would be severely prejudiced if his complaint
were dismissed.” Boudette v. Barnette, 923 F.2d
754, 756 (9th Cir. 1991) (citing Hart v. United
States, 817 F.2d 78, 80–81 (9th Cir. 1987)).
Second, if good cause is not established,
“the court has the discretion to dismiss without
prejudice or to extend the time period.”
Sheehan, 253 F.3d at 512. On its face,
“Rule 4(m) does not tie the hands of the district
court after the 120–day period has expired.”
Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir.
2007) (citation omitted).[ 1] Rather, “Rule 4(m)
The version of Rule 4(m) that was in effect at the time of
the Ninth Circuit’s decision in Efaw required service to be made
within 120 days after the complaint was filed. See Efaw, 473
F.3d at 1040.
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explicitly permits a district court to grant an
extension of time to serve the complaint after
the 120–day period.” Id. In making this
decision, courts may consider factors such as “a
statute of limitations bar, prejudice to the
defendant, actual notice of a lawsuit, and
eventual service.” Id. (citation omitted).
Rodriguez v. Cnty. of San Joaquin, No. 2:16-cv-00770-TLN-JDP,

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2021 WL 1214569, at *3 (E.D. Cal. Mar. 31, 2021).

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the Ninth Circuit also stated that, “[a]t a minimum, ‘good

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cause’ means excusable neglect[,]” and the Ninth Circuit stated

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the factors of actual notice, prejudice to the defendant, and

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severe prejudice to the plaintiff are considered in addition to

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the issue of excusable neglect.

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In Boudette,

923 F.2d at 756.

Plaintiffs did not dispute that, during the time that

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they have been attempting to serve Peterson, he was no longer

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employed with the Highway Patrol.

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¶ 1.

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Plaintiffs’ counsel with Peterson’s address on June 20, 2017.

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[Mem. in Supp. of Motion at 3.]

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Patrol provided him with a post office box address for Peterson,

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and the Highway Patrol subsequently informed him that this was

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Peterson’s last known address.

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Motion to Dismiss Def. Sgt. Peterson for Failure to Serve (“Zal

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Decl.”), filed 2/20/19 (dkt. no. 80), at ¶¶ 7-8.]

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argue the Highway Patrol was required “to provide to Plaintiffs

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a suitable address where Defendant Sgt. Peterson could be served

See Joint Status Report at

Defendants represent that their counsel provided

Mr. Zal states the Highway

[Decl. of Cyrus Zal in Opp. to

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Plaintiffs

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with the First Amended Complaint.”

[Mem. in Opp. at 2.]

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However, this Court did not order the Highway Patrol to provide

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the specific address at which Peterson could be served.

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Court ordered the Highway Patrol to provide Peterson’s address,

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and this Court stated that Plaintiffs could use the address to

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effect service.

This

See Minutes, filed 6/14/17 (dkt. no. 36).

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Defendants represent that Peterson’s post office box

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address that was provided to Plaintiffs’ counsel is Peterson’s

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last known address.

[Reply at 2.]

Assuming that is an accurate

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representation, the Highway Patrol complied with this Court’s

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order at the June 14, 2017 discovery conference, and Plaintiffs

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were required to use the post office box address to conduct

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additional research to determine where Peterson could be served.

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The Highway Patrol is ORDERED to file an affidavit or

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declaration, by someone with personal knowledge of the relevant

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Highway Patrol records, certifying that the address provided to

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Plaintiffs’ counsel on June 20, 2017 was Peterson’s last known

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address at that time.

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rejects Plaintiffs’ argument that the Highway Patrol’s failure

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to comply with this Court’s June 14, 2017 excuses their failure

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to serve Peterson.

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Subject to the foregoing, this Court

Plaintiffs also argue the unique circumstances created

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by the issues related to their representation status constitute

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good cause.

Although Mr. Zal’s motion to withdraw as
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Plaintiffs’ counsel was not granted until October 17, 2017, he

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states there was “a complete and irreparable breakdown in the

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attorney-client relationship between Plaintiffs and [him]

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beginning around the middle of June of 2017[,]” which “resulted

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in my being unable to provide any further legal services to

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Plaintiffs in this case[,]” with the exception of communicating

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with the Highway Patrol’s counsel regarding limited issues and

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completing some of Plaintiffs’ discovery obligations.

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Decl. at ¶ 4.]

[Zal

In fact, on August 14, 2017, Plaintiffs provided

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Mr. Zal with written notice that they were terminating his

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services.

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Plaintiffs were representing themselves pro se, they were unable

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to address the service issue because of their “complete lack of

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sophistication and lack of knowledge in legal matters and

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procedures[.]”

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status at that time did not excuse them from complying with the

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applicable court rules regarding service.

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v. Huerta, 1:17-cv-00130-AWI-GSA-PC, 2021 WL 1294999, at *2

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(E.D. Cal. Apr. 7, 2021) (“Plaintiff is not relieved of his

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obligation to comply with court’s rules and procedures simply

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because he is proceeding pro se.” (citing King v. Atiyeh, 814

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F.2d 565, 567 (9th Cir. 1987); Ghazali v. Moran, 46 F.3d 52, 54

[Id.]

Mr. Zal asserts that, during the time that

[Id. at ¶ 10.]

However, Plaintiffs’ pro se

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See, e.g., Cortinas

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(9th Cir. 1995); Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th

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Cir. 1986))). 2

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Although Mr. Zal became Plaintiffs’ counsel of record

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again on June 11, 2018, because he was “distracted by . . .

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health issues[,]” he forgot that Peterson had never been served

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in this case.

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difficult for Mr. Zal to maintain his law practice while he

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dealt with his health issues, by the time Mr. Zal became counsel

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of record again, more than a year had already passed since the

[Zal Decl. at ¶ 11.]

While it was understandably

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Highway Patrol provided Plaintiffs with Peterson’s last known

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address.

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additional time to serve Peterson until they filed their

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memorandum in opposition to Defendants’ Motion on February 20,

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2019, more than eight months after Mr. Zal resumed his

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representation of Plaintiffs.

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case, this Court cannot find that Plaintiffs’ failure to serve

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Peterson was the result of excusable neglect.

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F.2d at 756.

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Further, Plaintiffs did not ask this Court for

Under the circumstances of this

See Boudette, 923

Further, the other factors in the good cause analysis

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weigh against a finding of good cause in this case.

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Rodriguez, 2021 WL 1214569, at *3 (quoting Boudette v. Barnette,

See

King has been overruled in part on other grounds. Lacey
v. Maricopa Cnty., 693 F.3d 896, 925-28 (9th Cir. 2012) (per
curiam).
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923 F.2d 754, 756 (9th Cir. 1991)).

First, there is no

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indication in the record that Peterson has received actual

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notice of this action.

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Plaintiffs were allowed additional time for service because, by

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the time Defendants filed the instant Motion on January 29,

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2019, the action had been pending for three years, the discovery

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deadline had passed, and the motions deadline was imminent.

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Minutes, filed 9/7/18 (dkt. no. 69) (stating the discovery

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deadline was extended to 11/30/18 and the motions deadline was

Second, Peterson would be prejudiced if

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extended to 2/28/19).

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would not be severely prejudiced if their claims against

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Peterson were dismissed because the analysis of their claims

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against Peterson is likely to be the same as the analysis of

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their claims against McKenzie.

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Defendants’ Motion for Summary Judgment, filed 4/22/21 (dkt.

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no. 93).

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See

cause for their failure to complete service upon Peterson.

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Third, this Court finds that Plaintiffs

See generally Order Granting

Plaintiffs have therefore failed to establish good

This Court has the discretion to allow Plaintiffs

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additional time to serve Peterson, even in the absence of good

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cause.

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253 F.3d at 512).

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discussed above also weigh against the exercise of that

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discretion.

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Peterson with the Amended Complaint is therefore denied.

See Rodriguez, 2021 WL 1214569, at *3 (quoting Sheehan,
However, the circumstances of this case

Plaintiffs’ request for additional time to serve

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Defendants’ Motion is granted and Plaintiffs’ claims

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against Peterson are dismissed, without prejudice, for failure

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to serve.

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compliance with this Court’s order to file the affidavit or

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declaration described herein.

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be filed by May 7, 2021.

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affidavit or declaration, or if its filing indicates that

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another address for Peterson was available when the post office

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box address for Peterson provided to Plaintiffs, this Order will

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This ruling is subject to the Highway Patrol’s

If the Highway Patrol fails to file an

be withdrawn.
CONCLUSION

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The affidavit or declaration must

On the basis of the foregoing, Defendants’ Motion to

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Dismiss Defendant Peterson for Failure to Serve, filed

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January 29, 2019, is HEREBY GRANTED, subject to the Highway

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Patrol’s filing of the supporting documentation described in

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this Order.

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this Order, this Court will issue an order directing the Clerk’s

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Office to terminate Peterson as a party and to close this case.

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If the Highway Patrol’s submission complies with

IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, April 22, 2021.

GUILLERMO BONILLA, ET AL. VS. CALIFORNIA HIGHWAY PATROL, ET AL;
2:16-CV-01742 LEK; ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
DEFENDANT PETERSON FOR FAILURE TO SERVE

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