Campbell v. Brennan
Filing
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ORDER by Magistrate Judge Jacqueline Scott Corley granting 69 Motion to Set Aside Judgment; denying as moot 71 Motion for New Trial. (ahm, COURT STAFF) (Filed on 7/17/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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ELMER E CAMPBELL,
Plaintiff,
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United States District Court
Northern District of California
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Case No.15-cv-03582-JSC
ORDER RE: PLAINTIFF’S POSTJUDGMENT MOTIONS
v.
MEGAN J. BRENNAN,
Re: Dkt. Nos. 69 & 71
Defendant.
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Plaintiff Elmer Campbell brought this pro se employment discrimination action against his
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former employer Defendant the United States Postal Service alleging claims for retaliation and
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discrimination under the Rehabilitation Act and Title VII of the Civil Rights Act. The Court
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granted Defendant’s unopposed motion for summary judgment after granting Plaintiff an
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extension of time to respond to the motion and he failed to do so. (Dkt. No. 62.) Plaintiff’s
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Motion for Relief from Judgment under Federal Rule of Civil Procedure 60(b)(1) is now pending
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before the Court as is Plaintiff’s subsequently filed motion for new trial. (Dkt. Nos. 69 & 71.)
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After carefully considering the arguments and briefing submitted, the Court concludes that oral
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argument is unnecessary, see Civ. L.R. 7-1(b), VACATES the July 27, 2017 hearing and
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GRANTS Plaintiff’s Rule 60(b)(1) motion for the reasons set forth below.
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BACKGROUND
Plaintiff filed this action in August 2015 alleging claims of disability discrimination and
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failure to accommodate. Plaintiff thereafter amended his complaint five times through either
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stipulation or following an order on one of Defendant’s three motions to dismiss. Throughout this
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time, Plaintiff represented himself pro se with his friend Hank Royal, a non-attorney, providing
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informal “assistance.” (Dkt. No. 3.) Plaintiff was cautioned that Mr. Royal as a non-attorney
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could not represent him and was referred to the free Legal Help Center for assistance with his case
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on multiple occasions. (Dkt. Nos. 5, 29, 38.)
On June 10, 2016, Plaintiff filed his fifth amended complaint which pled claims for: (1)
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disability discrimination under the Rehabilitation Act, (2) retaliation under the Rehabilitation Act;
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and (3) retaliation under Title VII. (Dkt. No. 50.) Defendant thereafter answered. (Dkt. No. 51.)
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Defendant then sought to depose Plaintiff and required two extensions of time to do so because
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Plaintiff initially failed to cooperate in scheduling his deposition, and then when he did appear, he
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was confused about whether he had an attorney. (Dkt. Nos. 54 & 56.) Plaintiff later clarified that
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he did not have an attorney and his deposition was taken on February 24, 2017. (Dkt. No. 57 at
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3.1)
On April 20, 2017, Defendant filed a motion for summary judgment in accordance with the
United States District Court
Northern District of California
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Pretrial Order filed nearly a year earlier. (Dkt. No. 60.) Plaintiff failed to file a timely opposition
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and the Court sua sponte granted him an extension of time, ordering Plaintiff to file his response to
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the motion for summary judgment by May 23, 2017. (Dkt. No. 62.) Plaintiff failed to do so, and
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instead, on May 24, 2017, Plaintiff filed an “ex parte motion” which sought a 60 day extension of
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time to respond to the motion for summary judgment because “I had not received proof of service
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for motion for summary judgement [sic] until May 23, 2017.” (Dkt. No. 63.) The Court declined
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to grant Plaintiff a further extension of time to respond to the motion for summary judgment.
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Although the filing and hearing dates for the motion for summary judgment had been set more
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than a year prior, Plaintiff had apparently failed to check his PO Box for nearly a month. The
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Court concluded that Plaintiff had not shown good cause for failing to file his opposition. The
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Court noted that it and government counsel had been exceedingly patient with Plaintiff allowing
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him multiple opportunities to amend his pleadings to cure his failure to plead all of his claims in
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each iteration of his complaint and the Court had referred Plaintiff to the free Legal Help Center
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for assistance with his case on multiple occasions. The Court then considered the merits of the
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motion for summary judgment and granted it in full. (Dkt. No. 67.)
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Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
ECF-generated page numbers at the top of the documents.
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A week later, Plaintiff filed the now pending motion for relief from judgment under
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Federal Rule of Civil Procedure 60(b)(1). (Dkt. No. 69.) The government opposes the motion.
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(Dkt. No. 70.) Plaintiff then filed a motion for new trial under Federal Rule of Civil Procedure 59.
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(Dkt. No. 71.)
DISCUSSION
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Rule 60(b) provides for reconsideration only upon a showing of: (1) mistake, inadvertence,
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surprise or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could
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not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud by the
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adverse party; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other
reason justifying relief. See Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255,
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United States District Court
Northern District of California
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1263 (9th Cir. 1993). Rule 60(b) provides for extraordinary relief and may be invoked only upon
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a showing of exceptional circumstances. Engleson v. Burlington Northern Railroad Co., 972 F.2d
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1038, 1044 (9th Cir. 1992).
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Plaintiff seeks relief under the first prong for excusable neglect. The determination
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whether relief should be granted under Rule 60(b)(1) “depends on at least four factors: (1) the
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danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on
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the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.”
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Bateman v. United States Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000) (adopting standard
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to determine excusable neglect as set forth in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.,
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507 U.S. 380, 395 (1993)). The court may consider the Pioneer factors without discussing how
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much weight it gives to each. M.D. v. Newport-Mesa Unified Sch. Dist., 840 F.3d 640, 643 (9th
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Cir. 2016) (per curiam).
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Plaintiff contends that his failure to file an opposition to the motion for summary judgment
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should be excused based on a finding of excusable neglect. In particular, Plaintiff alleges that he
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failed to respond to the motion for summary judgment because Mr. Hank Royal who the “court
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had granted [] the privilege of being intermediate to Plaintiff because Plaintiff had no viable
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means to retrieve and or receive the courts [sic] correspondence in a timely manner[,]” had entered
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hospice in October 2016 and was near death. (Dkt. No. 69 at 2.) Plaintiff maintains that his
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mobility disability impeded him from checking his own mail and that he relied on Mr. Royal to do
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so.
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The Court never granted Mr. Royal, a non-attorney, any status in this lawsuit; rather, the
Court repeatedly stated that Plaintiff was proceeding pro se and that he should visit the Legal Help
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Desk for free legal assistance. While the Court mailed copies of orders to Mr. Royal as a courtesy
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to Plaintiff, it also served Plaintiff with a copy of orders at his PO Box which is the address on file
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with the Court. (Dkt. Nos. 5-1, 12-1, 17-1, 23-1, 29-1, 37-1, 38-1, 48-1, 54-1 and 62-1.)
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Defendant likewise served Plaintiff with a copy of the motion for summary judgment at Plaintiff’s
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PO Box. (Dkt. No. 60-16.) Further, Plaintiff never notified the Court that his address had changed
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nor did he seek any sort of relief from the Court based on an inability to proceed with the litigation
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United States District Court
Northern District of California
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due to Mr. Royal’s incapacitation. See Civ. L.R. 3-11(a) (requires parties to “promptly file with
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the Court and serve upon all opposing parties a Notice of Change of Address specifying the new
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address”). Nonetheless, because the reason for the delay is just one of the four factors that the
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Court must consider in deciding a Rule 60(b)(1) motion, the Court turns to the other factors:
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prejudice to the opposing party, the length of the delay, and whether the movant acted in good
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faith. See Bateman, 231 F.3d at 1224 (holding that the district court abused its discretion when it
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only considered the reason for the delay and not the other three factors).
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Defendant’s opposition brief does not point to any prejudice as a result of Plaintiff’s failure
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to oppose the motion for summary judgment, and instead, focuses on whether Plaintiff has shown
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excusable neglect and whether Plaintiff was treated fairly, which Defendant insists he was. The
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Court agrees that defense counsel has treated Plaintiff fairly, and in fact, has provided extra
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courtesies to Plaintiff as a pro se litigant. However, this is not the relevant inquiry—the Court
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must look to the prejudice to Defendant. While delay of any kind may be prejudicial, the delay
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here is not substantial. As in Bateman, where the plaintiff likewise failed to file a timely
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opposition to the motion for summary judgment, the Defendant here “would have lost a quick
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victory and, should it ultimately have lost the summary judgment motion on the merits, would
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have had to reschedule the trial date. But such prejudice is insufficient to justify denial of relief
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under Rule 60(b)(1).” Id. at 1225.
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Likewise, the length of the delay and the potential impact on judicial proceedings is
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minimal. Plaintiff filed his Rule 60(b)(1) motion 10 days after judgment was entered and while it
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will be necessary to reset the trial date should Defendant’s motion for summary judgment be
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denied, this factor alone is not enough. See id. at 1225; M.D., 840 F.3d at 643 (collecting cases
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holding that minimal delay weighs in favor of a finding of excusable neglect).
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The final factor, whether the movant acted in good faith, also weighs in Plaintiff’s favor.
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Although Plaintiff’s pursuit of his claims has been less than expedient, he is both pro se and
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disabled. Further, once Plaintiff finally checked his PO Box and discovered that he had failed to
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file an opposition to Defendant’s motion for summary judgment and judgment had been entered in
Defendant’s favor, he promptly moved for relief. Under these circumstances, “there is no
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United States District Court
Northern District of California
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evidence that [Plaintiff] acted with anything less than good faith. His errors resulted from
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negligence and carelessness, not from deviousness or willfulness.” Lemoge v. United States, 587
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F.3d 1188, 1197 (9th Cir. 2009) (internal citation omitted).
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In sum, while the reason for the delay weighs against a finding of excusable neglect, the
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neglect here is not so egregious as to outweigh the other factors. See M.D., 840 F.3d at 643
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(reversing district court’s denial of a Rule 60(b)(1) motion where counsel misread a docket entry
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and made a calendaring error which resulted in the untimely filing of an amended complaint).
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Accordingly, the Court concludes that on balance Plaintiff has shown that his failure to file an
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opposition to Defendant’s motion for summary judgment was based on excusable neglect and that
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the judgment should be set aside under Rule 60(b)(1).
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CONCLUSION
For the reasons stated above, Plaintiff’s Rule 60(b)(1) motion is GRANTED. (Dkt. No.
69.) Plaintiff’s motion for a new trial is therefore DENIED AS MOOT. (Dkt. No. 71.)
The Court VACATES its Order granting summary judgment and the entry of judgment in
Defendant’s favor. (Dkt. Nos. 67 & 68.) The Clerk shall reopen the action.
Plaintiff’s opposition to the previously filed motion for summary judgment is due
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August 18, 2017. Plaintiff must file his opposition brief by this date. If he fails to do so,
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judgment will again be entered in Defendant’s favor. Defendant may file a reply to any
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opposition by September 1, 2017. Upon completion of the briefing, the Court will take the matter
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under submission and notify the parties if oral argument is necessary. Plaintiff is reminded of his
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responsibility as a party to ensure that he is aware of any filings in this action and thus must
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make arrangements to regularly check his mail.
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Finally, the Court again strongly encourages Plaintiff to seek free assistance from the
Northern District’s Pro Se Help Desk, United States Courthouse, San Francisco, 450 Golden Gate
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Avenue, 15th Floor, Room 2796, San Francisco, CA 94102 or the Help Desk at the Oakland
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Federal Courthouse, 1301 Clay Street, 4th Floor, Room 470S, Oakland, CA 94612. Plaintiff can
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make an appointment in person or by calling 415-782-8982.
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This Order disposes of Docket Nos. 69 & 71.
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United States District Court
Northern District of California
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IT IS SO ORDERED.
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Dated: July 17, 2017
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JACQUELINE SCOTT CORLEY
United States Magistrate Judge
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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ELMER E CAMPBELL,
Case No. 15-cv-03582-JSC
Plaintiff,
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v.
CERTIFICATE OF SERVICE
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MEGAN J. BRENNAN,
Defendant.
United States District Court
Northern District of California
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on July 17, 2017, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.
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Elmer E Campbell
P.O. Box 30361
Oakland, CA 94604
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Dated: July 17, 2017
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Susan Y. Soong
Clerk, United States District Court
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By:________________________
Ada Means, Deputy Clerk to the
Honorable JACQUELINE SCOTT CORLEY
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