Gomez v. Hedgepeth et al

Filing 64


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1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 7 8 9 DAVID MAURICE GOMEZ, No. C 11-3784 TEH (PR) 10 Plaintiff, ORDER GRANTING DEFENDANT TYLER’S MOTION TO QUASH SERVICE OF PROCESS, DENYING DEFENDANT TYLER’S MOTION TO DISMISS CLAIMS, GRANTING IN PART, PLAINTIFF’S MOTION TO PLACE DEFENDANT TYLER BACK IN ACTION 11 v. 12 United States District Court For the Northern District of California A. HEDGEPETH, et al., 13 Defendants. 14 / 15 Docket Nos. 42, 58 16 I 17 18 19 20 21 22 23 24 25 26 27 28 On August 1, 2011, pro se Plaintiff David Maurice Gomez, a state prisoner incarcerated at Salinas Valley State Prison (SVSP), filed this civil rights complaint against a number of individuals who were employed at SVSP, including Dr. J. Tyler, who was a staff psychologist at SVSP during the time at issue. All Defendants, including Dr. J. Tyler, were served with the complaint and summons. On July 5, 2012, Sara D. Van Loh, Supervising Deputy Attorney General for the State of California, filed a notice and acknowledgment of receipt of complaint and summons on behalf of Defendant Tyler. Doc. #12. On July 20, 2012, Plaintiff filed a notice of the death of Dr. Tyler. Doc. #20. On August 3, 2012, the 1 Court ordered that Defendants file a status report regarding Dr. 2 Tyler. 3 indicating that Dr. Tyler was not deceased. 4 October 30, 2012, Defendants filed a document titled, “Update to 5 Court-Ordered Status Report Regarding Defendant Tyler,” in which Ms. 6 Van Loh stated that she inadvertently had accepted service on behalf 7 of a person named D. Tyler who is not the individual that Plaintiff 8 named in his complaint. 9 2012, she was informed that Dr. J. Tyler, who is the named Defendant 10 Doc. #21. On August 8, 2012, Defendants filed a report However, on Ms. Van Loh stated that, on October 18, in this complaint, died several years ago. 11 Doc. #22. Doc. #41. On November 5, 2012, Defendants filed a motion to quash 12 service of process on behalf of Dr. J. Tyler on the grounds that 13 service on her has not been effectuated and the notice of and 14 acknowledgment of receipt of summons and complaint executed by 15 counsel was ineffective.1 16 against Dr. J. Tyler be dismissed because, under California Civil 17 Procedure Code section 366.2, the limitations period for filing a 18 claim against a deceased individual is one year, and Dr. J. Tyler 19 allegedly died approximately two years ago.2 20 21 Additionally, they move that the lawsuit On November 19, 2012, Plaintiff filed a “motion to have Dr. J. Tyler placed back in this civil action and that there be an 22 23 24 1 Counsel is appearing on behalf of Dr. Tyler solely for the purpose of filing the motion to quash and to dismiss. 2 27 Section 366.2(a) provides that, “if a person against whom an action may be brought on a liability of the person . . . dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.” 28 2 25 26 1 inquiry into this matter.” 2 claims against Dr. J. Tyler should not be dismissed because he 3 served the correct Dr. Tyler in August 2011, within one year of her 4 death which, according to Plaintiff, occurred in April 2011, and 5 that he should not be penalized because counsel accepted service on 6 behalf of someone Plaintiff had no intention of serving. Doc. #58. 7 II 8 9 Plaintiff argues that the In her declaration in support of the motion to quash, Ms. Van Loh states that, on May 31, 2012, she received a request for 10 representation from Nurse Practitioner D. Tyler of SVSP and that, on 11 June 18, 2012, she executed an acknowledgment of service on behalf 12 of D. Tyler believing that she was the defendant in Plaintiff’s 13 lawsuit. 14 unaware and had no reason to know that the “Dr. Tyler” sued by 15 Plaintiff was not the D. Tyler who had requested representation from 16 the Attorney General’s Office. 17 after she reviewed the documents relating to this case in 18 preparation for filing a dispositive motion, she realized that the 19 record referred to a Dr. J. Tyler rather than a D. Tyler. 20 Dec. at ¶ 3. 21 Gauche that Dr. J. Tyler, who Plaintiff named as a Defendant in his 22 complaint, had died several years ago. 23 Van Loh states that she has had no communication with Dr. J. Tyler 24 and was not authorized by her to accept service on her behalf. 25 26 Van Loh Dec. at ¶ 2. Ms. Van Loh states that she was Id. Van Loh After making inquiries, she was told by Defendant Van Loh Dec. at ¶ 4. Ms. Id. The Federal Rules of Civil Procedure allow service of process in accordance with the procedures for service of the state 27 28 Ms. Van Loh also states that, 3 1 where the district court is located. 2 Under California law, service by mail is permitted when an 3 acknowledgment of receipt of summons is executed by a defendant and 4 returned to the sender. 5 Service by mail is deemed complete on the date a written 6 acknowledgment of receipt of summons is executed and then returned 7 to the sender. 8 summons and complaint to an attorney who is not the designated agent 9 for service of process is ineffective. Fed. R. Civ. P. 4(e)(1). Cal. Civ. Proc. Code § 415.30(a), (c). Cal. Civ. Proc. Code § 415.30(c). Delivery of the Wagner v. City of Pasadena, 10 78 Cal. App. 4th 943, 951 (2000); see also Tandy Corp. v. Superior 11 Court, 117 Cal. App. 3d 911, 913 (1981) (service was not completed 12 because acknowledgment of receipt of summons was not executed and 13 returned by defendant’s agent) (citing Cal. Civ. Pro. Code 14 § 415.30(c). 15 Because Ms. Van Loh did not accept service and summons on 16 behalf of Dr. J. Tyler, service upon her was not completed. 17 Accordingly, the motion to quash service of process on Defendant Dr. 18 J. Tyler is GRANTED. 19 However, this does not mean that the claims against her 20 should be dismissed at this time. 21 on Defendant Dr. J. Tyler is found to be defective, he should be 22 granted the opportunity to remedy it. 23 Plaintiff argues that, if service The Court agrees. Plaintiff acknowledges that, under California Civil 24 Procedure Code section 366.2(a), there is a one-year limitations 25 period for filing claims against a deceased individual. 26 Plaintiff claims he has met this obligation because he filed his 27 28 4 However, 1 complaint in August 2011, before the one-year period had elapsed 2 because Dr. J. Tyler passed away in April 2011. 3 she “heard” from another Defendant that Dr. J. Tyler passed away two 4 years ago. 5 Ms. Van Loh states The Court is unable to determine the specific date on 6 which Dr. J. Tyler died because neither party submits her 7 authenticated death certificate nor a declaration from an individual 8 with personal knowledge of Dr. J. Tyler’s date of death. 9 interests of justice and for this motion only, the Court accepts In the 10 Plaintiff’s representation that he filed this lawsuit against Dr. J. 11 Tyler within the one-year time frame. 12 the proper party. 13 her successor or the executor, administrator or representative of 14 her estate. 15 Accordingly, Defendants’ motion to dismiss the claims against Dr. J. 16 Tyler is DENIED and Plaintiff’s motion to have Dr. J. Tyler placed 17 back in this action is GRANTED, IN PART. 18 cannot be “placed back in this action” because she is deceased, her 19 successor or representative of her estate may be sued in her stead. 20 Also, as indicated below, Plaintiff’s motion for an inquiry into 21 this matter is GRANTED. 22 Thus, Plaintiff may now serve A proper party in lieu of Dr. J. Tyler would be See Anderson v. Thomas, 2011 WL 121578, *1 (E.D. Cal.). Although Dr. J. Tyler In defense counsel’s declaration, she made no mention of 23 knowledge of Dr. J. Tyler’s successor or representative. 24 for Defendants is directed to conduct a reasonable investigation 25 into the status of Dr. J. Tyler’s estate. 26 obtain the name and address of the representative of Dr. J. Tyler’s 27 28 5 Counsel If counsel is able to 1 estate, counsel shall serve a notice of suggestion of death on both 2 the representative and Plaintiff and file a proof of service 3 reflecting the name and address of the person served. 4 Civ. P. 25 (procedure for serving suggestion of death). 5 is unable to obtain information regarding a successor or 6 representative, she shall file a declaration describing the efforts 7 made to comply with this Order. 8 file one or the other of these documents within forty-five days from 9 the filing date of this Order. See Fed. R. If counsel Defendants’ counsel is directed to 10 At the same time, Plaintiff has a responsibility to inform 11 the Court of the name and address of the appropriate defendant to be 12 served. 13 (although incarcerated plaintiff who is proceeding in forma pauperis 14 may rely on service by the Marshal, he should attempt to remedy any 15 apparent defects of which he has knowledge). 16 unable to effectuate service because the defendant is not where the 17 plaintiff claims, and the plaintiff is so informed, the plaintiff 18 must seek to remedy the situation or face dismissal. 19 Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994), overruled on other 20 grounds by Sandin v. Conner, 515 U.S. 472 (1995). 21 Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987) If the Marshal is Walker v. Therefore, Plaintiff must provide the Court with the 22 address of the legal representative of Dr. J. Tyler’s estate such 23 that the Marshal is able to effect service upon that individual. 24 Failure to do so within seventy days from the filing date of this 25 Order will result in the dismissal of the claims against Dr. J. 26 Tyler pursuant to Federal Rule of Procedure 4(m) (time limit for 27 28 6 1 service). 2 III 3 For the foregoing reasons: 4 1. Defendants’ motion to quash service of process is 5 GRANTED. (Docket #42). 6 7 2. Defendants’ motion to dismiss the claims against Dr. J. Tyler is DENIED. (Docket #42). 8 9 3. Plaintiff’s motion to have Dr. J. Tyler placed back into this action is GRANTED, IN PART. 10 11 12 (Docket #58). 4. Plaintiff’s motion for an inquiry is GRANTED. (Docket #58). 5. Defendants’ counsel shall make a reasonable 13 investigation into the status of Dr. J. Tyler’s estate and, if a 14 representative is discovered, shall serve a suggestion of death of 15 Dr. J. Tyler in accordance with Federal Rules of Civil Procedure 4 16 and 25 on the representative. 17 date of this Order, Defendants’ counsel shall file either a proof of 18 service reflecting service of the suggestion of death on the 19 representative of Dr. J. Tyler’s estate or, if counsel is unable to 20 locate such a representative, a declaration detailing her efforts to 21 comply with this Order. 22 Within forty-five days of the filing 6. Plaintiff must provide the Court with accurate and 23 current information of the representative of Dr. J. Tyler’s estate 24 such that the Marshal is able to effectuate service upon that party. 25 If Plaintiff fails to provide the Court with this information within 26 seventy days of the filing date of this Order, Plaintiff’s claims 27 28 7 1 against Dr. J. Tyler will be dismissed pursuant to Rule 4(m) of the 2 Federal Rules of Civil Procedure; the dismissal will be without 3 prejudice to Plaintiff refiling a complaint with such information. 4 IT IS SO ORDERED. 5 6 7 DATED 01/28/2013 THELTON E. HENDERSON United States District Judge 8 9 10 11 12 G:\PRO-SE\TEH\CR.11\Gomez 11-3784 Quash Serv Grant.wpd 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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