Gomez v. Hedgepeth et al

Filing 64

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. Signed by Judge Thelton E. Henderson on 01/28/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 1/29/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DAVID MAURICE GOMEZ,

No. C 11-3784 TEH (PR)

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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

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v.
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United States District Court
For the Northern District of California

A. HEDGEPETH, et al.,
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Defendants.
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/
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Docket Nos. 42, 58

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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

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Court ordered that Defendants file a status report regarding Dr.

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Tyler.

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indicating that Dr. Tyler was not deceased.

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October 30, 2012, Defendants filed a document titled, “Update to

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Court-Ordered Status Report Regarding Defendant Tyler,” in which Ms.

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Van Loh stated that she inadvertently had accepted service on behalf

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of a person named D. Tyler who is not the individual that Plaintiff

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named in his complaint.

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2012, she was informed that Dr. J. Tyler, who is the named Defendant

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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.

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Doc. #22.

Doc. #41.

On November 5, 2012, Defendants filed a motion to quash

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service of process on behalf of Dr. J. Tyler on the grounds that

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service on her has not been effectuated and the notice of and

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acknowledgment of receipt of summons and complaint executed by

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counsel was ineffective.1

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against Dr. J. Tyler be dismissed because, under California Civil

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Procedure Code section 366.2, the limitations period for filing a

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claim against a deceased individual is one year, and Dr. J. Tyler

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allegedly died approximately two years ago.2

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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

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Counsel is appearing on behalf of Dr. Tyler solely for the
purpose of filing the motion to quash and to dismiss.
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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.”

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inquiry into this matter.”

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claims against Dr. J. Tyler should not be dismissed because he

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served the correct Dr. Tyler in August 2011, within one year of her

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death which, according to Plaintiff, occurred in April 2011, and

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that he should not be penalized because counsel accepted service on

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behalf of someone Plaintiff had no intention of serving.

Doc. #58.

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II

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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

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representation from Nurse Practitioner D. Tyler of SVSP and that, on

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June 18, 2012, she executed an acknowledgment of service on behalf

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of D. Tyler believing that she was the defendant in Plaintiff’s

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lawsuit.

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unaware and had no reason to know that the “Dr. Tyler” sued by

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Plaintiff was not the D. Tyler who had requested representation from

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the Attorney General’s Office.

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after she reviewed the documents relating to this case in

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preparation for filing a dispositive motion, she realized that the

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record referred to a Dr. J. Tyler rather than a D. Tyler.

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Dec. at ¶ 3.

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Gauche that Dr. J. Tyler, who Plaintiff named as a Defendant in his

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complaint, had died several years ago.

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Van Loh states that she has had no communication with Dr. J. Tyler

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and was not authorized by her to accept service on her behalf.

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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

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Ms. Van Loh also states that,

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where the district court is located.

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Under California law, service by mail is permitted when an

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acknowledgment of receipt of summons is executed by a defendant and

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returned to the sender.

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Service by mail is deemed complete on the date a written

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acknowledgment of receipt of summons is executed and then returned

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to the sender.

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summons and complaint to an attorney who is not the designated agent

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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,

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78 Cal. App. 4th 943, 951 (2000); see also Tandy Corp. v. Superior

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Court, 117 Cal. App. 3d 911, 913 (1981) (service was not completed

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because acknowledgment of receipt of summons was not executed and

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returned by defendant’s agent) (citing Cal. Civ. Pro. Code

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§ 415.30(c).

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Because Ms. Van Loh did not accept service and summons on

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behalf of Dr. J. Tyler, service upon her was not completed.

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Accordingly, the motion to quash service of process on Defendant Dr.

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J. Tyler is GRANTED.

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However, this does not mean that the claims against her

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should be dismissed at this time.

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on Defendant Dr. J. Tyler is found to be defective, he should be

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granted the opportunity to remedy it.

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Plaintiff argues that, if service

The Court agrees.

Plaintiff acknowledges that, under California Civil

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Procedure Code section 366.2(a), there is a one-year limitations

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period for filing claims against a deceased individual.

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Plaintiff claims he has met this obligation because he filed his

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However,

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complaint in August 2011, before the one-year period had elapsed

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because Dr. J. Tyler passed away in April 2011.

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she “heard” from another Defendant that Dr. J. Tyler passed away two

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years ago.

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Ms. Van Loh states

The Court is unable to determine the specific date on

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which Dr. J. Tyler died because neither party submits her

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authenticated death certificate nor a declaration from an individual

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with personal knowledge of Dr. J. Tyler’s date of death.

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interests of justice and for this motion only, the Court accepts

In the

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Plaintiff’s representation that he filed this lawsuit against Dr. J.

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Tyler within the one-year time frame.

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the proper party.

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her successor or the executor, administrator or representative of

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her estate.

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Accordingly, Defendants’ motion to dismiss the claims against Dr. J.

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Tyler is DENIED and Plaintiff’s motion to have Dr. J. Tyler placed

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back in this action is GRANTED, IN PART.

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cannot be “placed back in this action” because she is deceased, her

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successor or representative of her estate may be sued in her stead.

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Also, as indicated below, Plaintiff’s motion for an inquiry into

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this matter is GRANTED.

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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

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knowledge of Dr. J. Tyler’s successor or representative.

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for Defendants is directed to conduct a reasonable investigation

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into the status of Dr. J. Tyler’s estate.

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obtain the name and address of the representative of Dr. J. Tyler’s

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Counsel

If counsel is able to

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estate, counsel shall serve a notice of suggestion of death on both

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the representative and Plaintiff and file a proof of service

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reflecting the name and address of the person served.

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Civ. P. 25 (procedure for serving suggestion of death).

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is unable to obtain information regarding a successor or

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representative, she shall file a declaration describing the efforts

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made to comply with this Order.

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file one or the other of these documents within forty-five days from

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the filing date of this Order.

See Fed. R.
If counsel

Defendants’ counsel is directed to

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At the same time, Plaintiff has a responsibility to inform

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the Court of the name and address of the appropriate defendant to be

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served.

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(although incarcerated plaintiff who is proceeding in forma pauperis

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may rely on service by the Marshal, he should attempt to remedy any

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apparent defects of which he has knowledge).

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unable to effectuate service because the defendant is not where the

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plaintiff claims, and the plaintiff is so informed, the plaintiff

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must seek to remedy the situation or face dismissal.

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Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994), overruled on other

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grounds by Sandin v. Conner, 515 U.S. 472 (1995).

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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

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address of the legal representative of Dr. J. Tyler’s estate such

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that the Marshal is able to effect service upon that individual.

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Failure to do so within seventy days from the filing date of this

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Order will result in the dismissal of the claims against Dr. J.

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Tyler pursuant to Federal Rule of Procedure 4(m) (time limit for

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service).

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III

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For the foregoing reasons:

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1. Defendants’ motion to quash service of process is

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GRANTED. (Docket #42).

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2. Defendants’ motion to dismiss the claims against Dr. J.
Tyler is DENIED. (Docket #42).

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3. Plaintiff’s motion to have Dr. J. Tyler placed back
into this action is GRANTED, IN PART.

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(Docket #58).

4. Plaintiff’s motion for an inquiry is GRANTED.

(Docket

#58).
5. Defendants’ counsel shall make a reasonable

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investigation into the status of Dr. J. Tyler’s estate and, if a

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representative is discovered, shall serve a suggestion of death of

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Dr. J. Tyler in accordance with Federal Rules of Civil Procedure 4

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and 25 on the representative.

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date of this Order, Defendants’ counsel shall file either a proof of

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service reflecting service of the suggestion of death on the

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representative of Dr. J. Tyler’s estate or, if counsel is unable to

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locate such a representative, a declaration detailing her efforts to

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comply with this Order.

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Within forty-five days of the filing

6. Plaintiff must provide the Court with accurate and

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current information of the representative of Dr. J. Tyler’s estate

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such that the Marshal is able to effectuate service upon that party.

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If Plaintiff fails to provide the Court with this information within

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seventy days of the filing date of this Order, Plaintiff’s claims

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against Dr. J. Tyler will be dismissed pursuant to Rule 4(m) of the

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Federal Rules of Civil Procedure; the dismissal will be without

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prejudice to Plaintiff refiling a complaint with such information.

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IT IS SO ORDERED.

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DATED

01/28/2013
THELTON E. HENDERSON
United States District Judge

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