Bonomi v. City and County of San Francisco et al

Filing 31

ORDER DIRECTING FILING OF PROOF OF SERVICE. Signed by Judge Hamilton on 7/11/2012. (pjhlc1, COURT STAFF) (Filed on 7/11/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICHARD BONOMI,
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Plaintiff,

No. C 10-5847 PJH

v.

ORDER

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For the Northern District of California

United States District Court

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CITY AND COUNTY OF SAN
FRANCISCO, et al.,

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Defendants.
_______________________________/

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This case was originally filed in the Superior Court of California, County of San

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Francisco, on November 12, 2010, against defendants City and County of San Francisco

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(“the City”) and DOES One through Twenty. Summons was issued as to the City and the

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twenty DOES.

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On December 10, 2010, plaintiff filed a first amended complaint, substituting “Officer

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Marci aka Officer Marcy aka Officer Marcie” as a defendant in place of one of the DOES.

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On December 22, 2010, the City removed the case to this court. In the notice of removal,

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the City stated that it was the only defendant that had been served as of the date of

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removal. To date, Officer Marcic (correct spelling) has not appeared in the case.

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On March 28, 2011, after the case had been pending in this court for 95 days, the

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case was stayed for 50 days (to May 17, 2011) at the parties’ request. On May 24, 2011,

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the case was stayed for a further 50 days (to July 13, 2011).

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At the July 11, 2012, hearing on the City’s motion for summary judgment, plaintiff’s
counsel represented that defendant Officer Marcic had been served with the summons and

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complaint. If Officer Marcic was in fact served while the case was pending in state court,

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then the removal was improper, because “all defendants who have been properly joined

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and served must join in or consent to the notice of removal.” 28 U.S.C. § 1446(b)(2)(A).

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If Officer Marcic was not served while the case was pending in state court, then it is

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possible that plaintiff served him after the City filed the notice of removal. However, it is

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difficult for the court to ascertain how plaintiff could have served Officer Marcic at any time

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since the case was removed, given that no summons has been issued by the clerk of this

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court.

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In addition, under Federal Rule of Civil Procedure 4(m), the court is required to
dismiss claims against any defendant who has not been served with the summons and

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For the Northern District of California

United States District Court

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complaint within 120 days of the date the complaint is filed. In the case of actions that are

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removed from state court, and that include defendants who have not yet been served, this

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court counts the 120 days from the date of removal.

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Here, the amount of time from the date of removal until the first order staying the

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case was 95 days. Following the lifting of the stay, the remaining period required to make

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up the 120 days (25 days) ended on August 8, 2011. If Officer Marcic was served after that

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date, the court will dismiss the claims against him pursuant to Rule 4(m).

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Accordingly, the court ORDERS plaintiff to establish when and under what

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circumstances Officer Marcic was served, if he in fact was served. No later than Monday,

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July 16, 2012, plaintiff’s counsel shall file a proof of service showing service of the

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summons and first amended complaint on Officer Marcic. If plaintiff’s counsel fails to

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comply with this order, the court will dismiss the claims against Officer Marcic.

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IT IS SO ORDERED.

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Dated: July 11, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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