Shek v. Childrens Hospital Research Center of Oakland et al
Filing
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ORDER IMPOSING SANCTIONS AGAINST PLAINTIFF [re 57 Order]. Signed by Judge William Alsup on 12/13/2012. (whasec, COURT STAFF) (Filed on 12/13/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JOHN SHEK,
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For the Northern District of California
United States District Court
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Plaintiff,
No. C 12-04517 WHA
v.
CHILDREN HOSPITAL RESEARCH
CENTER OF OAKLAND, et al.,
ORDER IMPOSING SANCTIONS
AGAINST PLAINTIFF
Defendants.
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INTRODUCTION
In this wrongful-termination action, our pro se plaintiff is now under an order to show
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cause as to why sanctions should not be imposed against him for knowingly serving the wrong
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person. For the reasons stated below, this order finds that plaintiff has seriously abused the
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process power of the district court and should be appropriately sanctioned.
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STATEMENT
Pro se plaintiff John Shek brought a complaint alleging discrimination and wrongful
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termination against his former employer Children’s Hospital Research Center of Oakland and
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ten individuals, including a Mr. Joseph Robinson (Dkt. No. 16). A November 30 order granted
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the Hospital’s motion to dismiss plaintiff’s first amended complaint as to all defendants for
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failure to state a claim for relief, and provided that plaintiff might seek leave to amend within
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twenty-one days. He has not yet done so.
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On December 6, 2012, at the end of a long case management calendar, the courtroom’s
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public seating area was empty save and except for a man and woman. The Court inquired what
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they were waiting on and how they could be helped. The man stated that he had been summoned
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by plaintiff to appear at a case management conference for that day. He produced a notice to
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that effect, served by plaintiff. No one else was present, however, including plaintiff. The Shek
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case management conference, earlier scheduled for December 6, 2012, had been continued,
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per plaintiff’s request (Dkt. No. 31) to December 13. It was incumbent on plaintiff to notify
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Mr. Robinson that he need not appear until then. However, plaintiff failed to do so.
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Mr. Robinson further stated that he was not the Joseph Robinson named in the complaint.
The Court then asked Mr. Robinson to come forward and explain further. Mr. Robinson stated
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For the Northern District of California
United States District Court
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that he had been wrongfully served by plaintiff’s process server, and had tried without success,
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after reading the papers, to call and explain to plaintiff that he had the wrong person, but was
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hung up on by a woman who answered the phone. The Court requested Mr. Robinson to repeat
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the explanation, under oath, and then asked a few follow-up questions.
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Mr. Robinson testified that two individuals came to his home with the evident intention
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to serve him with something. At his open front door, he overhead the man, an Asian man
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like Mr. Shek, say to his woman companion something to the effect that “this is not him.”
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Despite this realization, the next day, the same woman returned with an officer and they served
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Mr. Robinson anyway — knowing him to be the wrong defendant. Mr. Robinson testified that
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he was a retired firefighter and had never been employed by Children’s Hospital. The Court
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finds that the man and woman who came to Mr. Robinson’s home were plaintiff John Shek and
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his sister Judith Shek.
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This order finds that plaintiff and his sister knew that Mr. Robinson was not the intended
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defendant, but still proceeded to have him served anyway. The sworn record demonstrates, and
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the Court so finds, that it was (and still is) abundantly clear that Mr. Joseph L. Robinson is not
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the “Joseph Robinson” named in plaintiff’s amended complaint. The Joseph Robinson they
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served is a retired civil servant who has dedicated his career to the City of Richmond Fire
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Department. His only connection to Children’s Hospital was when he, long ago, took his then
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young children there to receive care.
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At the end of the hearing, the Court quashed the service of summons and complaint
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against Mr. Robinson and excused him from the case (Dkt. No. 57). The Court then issued
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a written order for plaintiff and Judith Shek to appear at the case management conference on
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December 13, 2012, and to show cause as to why sanctions should not be entered against them.
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On December 12, 2012, plaintiff and Judith Shek submitted a declaration to the Court
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stating without explanation that Judith Shek was unable to attend the December 13 hearing
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because of a “previous engagement.” Judith Shek further declared that she served the waiver
of summons on Mr. Joseph Robinson by mail and that the United States Marshal served the
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For the Northern District of California
United States District Court
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summons to the victim (Dkt. No. 65).
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At the hearing to show cause, Mr. Shek testified that he unintentionally served
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Mr. Joseph L. Robinson. Plaintiff testified that he “U.S. searched” the name “Joseph Robinson,”
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and was given the address for Mr. Joseph L. Robinson. Although much of Mr. Shek’s
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explanation was unintelligible, he testified that he served Mr. Robinson in regards to “another
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case” for purposes of Mr. Robinson’s status as a “witness.” However, Mr. Robinson’s
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testimony, in addition to the papers he was served with, show that Mr. Robinson was named, and
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served, as a defendant in plaintiff’s action.
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This order finds that plaintiff John Shek knowingly persisted in serving process against
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Mr. Joseph L. Robinson, the wrong defendant. The sworn record indicates that plaintiff and his
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process server (his sister) knew Mr. Robinson was not the intended defendant when they initially
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came to his home; however, the next day, Judith Shek returned and wrongfully caused the
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officer to serve him anyway. In response to the declaration submitted by Judith Shek stating
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that the summons “to Joseph Robinson was served by U.S. Marshal,” it may be true that the
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Marshal physically served Mr. Robinson. However, the Marshal was acting at the instruction of
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Mr. Shek’s sister and therefore the Marshal cannot be blamed — only Mr. Shek and his sister
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can be blamed. Furthermore, Mr. Robinson then attempted to contact plaintiff and inform him
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of the mistake, but Mr. Robinson was hung up on. This forced Mr. Robinson to needlessly incur
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litigation-related expenses and stress.
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The failure of plaintiff to discontinue the action against Mr. Robinson, after knowing
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that he was not the intended defendant, violated Rule 11 of the FRCP. Rule 11 requires that
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sanctions be assessed when a complaint is frivolous, legally unreasonable, or without factual
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foundation. Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1508 (9th Cir. 1987). Rule 11
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thus creates and imposes an affirmative duty of investigation both as to law and fact before
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filing. Sanctions are mandatory if a violation has occurred. Ibid. Rule 11 applies to pro se
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plaintiffs, although the court must take into account a plaintiff’s pro se status when it determines
whether the filing was reasonable. Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994).
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For the Northern District of California
United States District Court
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In determining whether it is sanctionable to sue a party who turns out to be an improper
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defendant, the standard is one of objective reasonableness. Rachel, 831 F.2d at 1508. Given that
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plaintiff has failed to adequately explain why Mr. Joseph L. Robinson was served in this action,
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in addition to the circumstances that (1) plaintiff’s pre-filing inquiry consisted of nothing more
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than a “U.S. search”; (2) it was expressed that Mr. Joseph L. Robinson was not the intended
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defendant during initial service; and (3) plaintiff ignored Mr. Robinson’s attempts to inform
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plaintiff that he was not the correct defendant, serving Mr. Robinson constitutes sanctionable
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misconduct.
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CONCLUSION
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As a sanction, except and until this Court determines that plaintiff has submitted an
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operative complaint, plaintiff will be precluded from serving any additional defendants —
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including anyone named Joseph Robinson — on account of plaintiff’s abuse of the judicial
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system. All efforts by plaintiff to serve further individuals must cease immediately.
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Process served on individuals prior to today’s hearing will stand, subject to motions to quash
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for improper service and other appropriate motions.
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IT IS SO ORDERED.
Dated: December 13, 2012.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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