Donohue III v. Antioch Police Department et al

Filing 34

ORDER RE SERVICE AND RENEWED COMPLAINT. U.S. Marshals to complete service of process by July 29, 2024. Any amended complaint due by July 31, 2024 at noon. Signed by Judge William Alsup. (whalc2, COURT STAFF) (Filed on 7/8/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 KING DAVID LEVON DONAHUE III, Plaintiff, 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. ANTIOCH POLICE DEPARTMENT, COUNTY OF CONTRA COSTA, CITY OF ANTIOCH, AND OFFICERS JOSHUA RIOSBAAS, KYLE SMITH, SHAWN MARQUES, JACOB KING, RYAN GEIS, RUDOLPH NIEVES, ARTURO BECERRA, MATTHEW KOCH, AND BRANDON BUSBY, No. C 23-05564 WHA ORDER RE SERVICE AND RENEWED COMPLAINT Defendants. Parties other than County of Contra Costa (“Contra Costa”) appeared last Monday for initial case management conference and argument (see Dkt. No. 33). Plaintiff appeared pro se. For defendants City of Antioch (“Antioch”), its Police Department, and all individuals, counsel affirmatively entered appearances to argue motions. These defendants waived any defect in service or personal jurisdiction. See Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986), as amended, 807 F.2d 1514 (9th Cir.), cert. denied, 484 U.S. 870 (1987) (mem.). For defendant Contra Costa, no counsel appeared, and other parties’ initial statements revealed good cause to extend time for service on Contra Costa under Rule 4(m). While that much remains unchanged, the Court realizes it was in error to require plaintiff now to serve Contra Costa. First, it is not yet clear plaintiff failed to serve Contra Costa (see Dkt. No. 30 at 1–2 (“The parties to the above-entitled action jointly submit . . . [that a]ll parties have been 1 served, and no issues exist regarding personal jurisdiction.”)). Second, now that the plaintiff 2 proceeds in forma pauperis (“IFP”) (Dkt. No. 20), the Court must ensure service on plaintiff’s 3 behalf under Rule 4(c)(3). United States District Court Northern District of California 4 To the extent service has not been timely rendered, the Court finds good cause under 5 Rule 4(m) to extend time for service. There are several reasons. First, the other defendants’ 6 counsel at first stated he represented all defendants before clarifying he meant all but Contra 7 Costa, making unacceptably plausible that plaintiff received similarly misleading 8 representations on which he relied even before he was granted IFP status. Second, as above, 9 plaintiff’s IFP status makes failure of service now the Court’s error. Third, if not yet served, 10 Contra Costa likely has actual notice of this matter, given it is nearby, embraces Antioch, and 11 allegedly interacts with defendants. Key evidence for the claims will also be records-based. 12 And the claims remain timely. See Butler v. Nat’l Cmnty. Renaissance of Cal., 766 F.3d 1191, 13 1198 (9th Cir. 2014) (applying Cal. Civ. P. Code § 335.1). Thus, giving extra time to serve 14 comports with service’s function. See Henderson v. United States, 517 U.S. 654, 672 (1996). 15 In light of these developments, the Court has reconsidered the ambitious schedule it set at 16 the hearing. Though plaintiff is welcome to proceed pro se, the Court again invites plaintiff to 17 consider getting a lawyer. Among the options that may be available, plaintiff may be able to 18 obtain pro bono counsel (no-cost legal service) particularly because plaintiff has IFP status. 19 For reasons above, the following orders result: 20 1. The time to serve shall be extended until JULY 29, 2024 (21 days from today). 21 Plaintiff does not need to serve Contra Costa himself (see below). 22 2. The Clerk of Court shall re-issue the summons as needed. See Fed. R. Civ. P. 4(a)(2). 23 3. The U.S. Marshal for the Northern District of California shall serve, without 24 prepayment of fees, the summons, a copy of the complaint, plaintiff’s affidavit (all 25 Dkt. No. 1), and this order upon Contra Costa. 26 27 4. Plaintiff must promptly inform the Court of any change of address while this case is pending. Failure to do so may result in dismissal of this action. 28 2 1 2 should he otherwise wish, due by JULY 31, 2024 AT NOON. For any such amendment 3 and other filings, plaintiff must serve counsel for Contra Costa and counsel for 4 Antioch (for itself and all remaining parties) by mail, through the Court’s electronic 5 filing system, or as otherwise permitted by the rules. See Fed. R. Civ. P. 5(b). 6 United States District Court Northern District of California 5. Plaintiff may file an amended complaint, should any counsel he retain so advise or 6. If plaintiff files an amended complaint, any motion to dismiss or answer will be due 7 within 28 CALENDAR DAYS of the amended complaint’s filing (e.g., if the plaintiff 8 files an amended complaint on July 31, 2024, any motion to dismiss or answer will be 9 due by August 28, 2024). Otherwise, the court will issue any appropriate orders, 10 including on the existing motion to dismiss (Dkt. No. 6), and instruct parties of next 11 steps. The Court will thereafter set the case management schedule. 12 IT IS SO ORDERED. 13 14 Dated: July 8, 2024. 15 16 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3

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