Bumagat et al v. Shillinger et al

Filing 39

ORDER signed by Magistrate Judge Gregory G. Hollows on 4/10/2018 ORDERING Case No. 2:17-CV-2022 TLN GGH PS is DISMISSED by plaintiff, and the Clerk shall close case number 2:17-CV-2022; the City defendants will file a new answer, including modified a ffirmative defenses, to 26 , the 4th Amended Complaint, within 14 days of the date of this order; Plaintiff's 37 Motion to file a document under seal, is DENIED; County defendants' 15 Motion to Dismiss for failure to serve is GRANTED w ith leave to effect service, and plaintiff (though the Marshal) is ORDERED to serve the 4th Amended Complaint on the County defendants; County of Solano, Amy Furlong and Krishan Abrams; the Clerk of the Court is directed to serve a copy of this order on the U.S.Marshal, Sacramento, CA; this Order resolves ECF Nos. 11, 22, 23, 24, 25 and 27. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MAYNARD EDRALIN BUMAGAT,

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No. 2:17-cv-02008-TLN-GGH

Plaintiff,
v.

ORDER

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TERRY SHILLINGER, et al.,

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Defendants.

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The County defendants’ Motion to Dismiss for failure to serve process and plaintiff’s

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Motion to Strike Affirmative Defenses pleaded by the City defendants’ came on for hearing on

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this court’s April 5, 2018 calendar. Katelyn M. Knight appeared for the City Defendants and

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Raymond Bangle, III appeared for the County defendants. Plaintiff appeared in pro se. After

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discussion among the parties the following agreements were arrived at.

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1.

Plaintiff agreed to dismissal of an essentially duplicative action brought on the

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same facts and against the same parties filed as case number 2:17-cv-2022-TLN-GGH leaving the

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present case as the only active litigation between these parties.

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2.

All parties agreed that the complaint denominated the Fourth Amended Complaint

shall be the operative complaint going forward. ECF No. 26.
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Plaintiff will serve the Fourth Amended Complaint on the County defendants

through the U.S. Marshal as instructed in this Order.
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4.

The City will file an amended answer to the Fourth Amended Complaint and will

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provide sufficient facts regarding the affirmative defenses raised to give the plaintiff fair notice of

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the defense terms sufficient to allow him to do discovery if necessary. The example given

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regarding an insufficient defense was the sixth affirmative defense which stated only that “any of

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plaintiff’s alleged damages or injuries were aggravated by plaintiff’s failure to use reasonable

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diligence to mitigate them.” ECF 18 18:14-16. The fair notice required as to this defense is what,

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in general terms, plaintiff could or should have done to mitigate.

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The City’s counsel also agreed that she would revisit the numerous affirmative defenses in
order to determine whether she had sufficient information to provide “fair notice,” and if not,

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whether she should withhold the defense given that, as the court informed her, she could move to

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amend the Answer if and when such facts were developed and good cause was shown.

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Finally, the court addressed the plaintiff’s request to file a document under seal,

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explaining that evidentiary documents were not to be filed with the court, except in connection

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with a motion or for use at trial. Further, the court cannot seal a filing without the moving party

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having provided the basis therefor as required by Eastern District of California Local Rule No.

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141. Plaintiff is hereby notified that he can acquire a copy of these Local Rules at the office of

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the Clerk of the Court, 501 I Street, Sacramento 95814, Fourth Floor, or online (Google: “Eastern

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District of California.”

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In light of the foregoing IT IS HEREBY ORDRED that:

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1.

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Case number 2:17cv-2022 TLN GGH is dismissed by plaintiff, and the Clerk shall

close case number 17-2022.

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2.

The City defendants will file a new answer, including modified affirmative

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defenses, to the Fourth Amended Complaint, ECF No. 26, within 14 days of the date of this

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order;

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3.

Plaintiff’s Motion to file a document under seal, ECF No 37 is DENIED;

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4.

County defendants’ Motion to Dismiss for failure to serve is granted with leave to

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effect service, and plaintiff (though the Marshal) is ordered to serve the Fourth Amended

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Complaint on the following County defendants:
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a.

County of Solano

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b.

Amy Furlong

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c.

Krishan Abrams;

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Clerk of the Court shall send plaintiff one USM-285 form for each of the named

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defendants, one summons, a copy of the Fourth Amended Complaint, an appropriate form for

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consent to trial by a magistrate judge, and the court’s status order;

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6.

Plaintiff is directed to supply the U.S. Marshal, within 14 days from the date this

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Order is filed, all information needed by the Marshal to effect service of process, and shall file a

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statement with the court that said documents have been submitted to the United States Marshal.

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The court anticipates that, to effect service, the U.S. Marshal will require at least:

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a. One completed summons for each defendant;

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b. One completed USM-285 form for each defendant;

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c. One copy of the endorsed filed complaint for each defendant, with an extra

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d. copy for the U.S. Marshal;

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e. One copy of this court’s status order for each defendant; and

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f. One copy of the instant order for each defendant.

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7.

In the event the U.S. Marshal is unable, for any reason whatsoever, to effectuate

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service on any defendant within 90 days from the date of this order, the Marshal is directed to

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report that fact, and the reasons for it, to the undersigned.

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If a defendant waives service, the defendant is required to return the signed waiver

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to the United States Marshal. If the Marshal has already attempted personal service, the filing of

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an answer or a responsive motion will not relieve a defendant from the potential obligation to pay

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the costs of service pursuant to Federal Rule of Civil Procedure 4(d)(2).

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The Clerk of the Court is directed to serve a copy of this order on the U.S.

Marshal, 501 “I” Street, Sacramento, CA 95814, Tel. No. [phone].

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10.

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This Order resolves ECF Nos. 11, 22, 23, 24, 25 and 27.

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Plaintiff’s failure to comply with this order may result in a recommendation that

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this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b) and Local Rules 110

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and 183(a).

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IT IS SO ORDERED.
Dated: April 10, 2018
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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