Stebbins v. Polano

Filing 45

ORDER REGARDING 35 First MOTION for Hague Service; and ORDER TO SHOW CAUSE REGARDING IN FORMA PAUPERIS STATUS. Signed by Judge Jeffrey S. White on 9/9/21. Show Cause Response due by 9/23/2021. (jjoS, COURT STAFF) (Filed on 9/9/2021)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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Case 4:21-cv-04184-JSW Document 45 Filed 09/09/21 Page 1 of 4 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAVID A. STEBBINS, Plaintiff, 8 9 10 United States District Court Northern District of California 11 v. KARL POLANO, et al., Defendants. Case No. 21-cv-04184-JSW ORDER REGARDING MOTION TO CONDUCT HAGUE SERVICE AND ORDER TO SHOW CAUSE REGARDING IN FORMA PAUPERIS STATUS Re: Dkt. No. 35 12 13 Now before the Court for consideration is the motion filed by Plaintiff David Stebbins 14 (“Plaintiff”) requesting that the Court serve Defendant Karl Polano (“Polano”) via the Hague 15 Convention, or in the alternative, permitting Plaintiff leave to conduct service via the Hague 16 Convention. The Court has considered Plaintiff’s papers, relevant legal authority, and the record 17 in this case, and it finds the motion is suitable for disposition without oral argument. See N.D. 18 Civ. L.R. 7-1(b). For the following reasons, the Court GRANTS, IN PART, and DENIES, IN 19 PART, Plaintiff’s motion. 20 21 BACKGROUND On July 29, 2021, Plaintiff filed an amended complaint alleging copyright infringement 22 claims against Polano and several other Defendants. (Dkt. No. 11.) On August 3, 2021, the U.S. 23 Marshal was ordered to serve the Defendants with the summons and complaint. (Dkt. No. 21.) 24 On August 17, 2021, Polano’s summons was returned unexecuted because the U.S. Marshals are 25 not authorized to serve American process in foreign countries. (See Dkt. No. 32.) On August 26, 26 2021, Plaintiff filed a motion requesting that: (1) the Court order Court personnel to cooperate 27 with Plaintiff in serving process on Polano in a way that is not prohibitively expensive; or (2) 28 grant Plaintiff leave to serve process on his terms, in whatever manner he chooses that is otherwise Case 4:21-cv-04184-JSW Document 45 Filed 09/09/21 Page 2 of 4 1 in compliance with the law. (Dkt. No. 35.) ANALYSIS 2 3 A. Plaintiff Is Required to Serve Defendant Polano. 4 Federal Rule of Procedure 4(f) governs service of individuals in foreign countries. Under 5 Rule 4(f)(1), an individual may be served “by any internationally agreed means of service that is 6 reasonably calculated to give notice, such as those authorized by the Hague Convention,” or by 7 “any other means not prohibited by international agreement, as the court orders.” Fed. R. Civ. P. 8 4(f)(1), (3). Although the U.S. Marshal was ordered to serve the Defendants in this action because of 9 Plaintiff’s in forma pauperis status, service of the complaint is ultimately Plaintiff’s responsibility. 11 United States District Court Northern District of California 10 See Hertig v. Cambra, 04-cv-5633-ROS (PC), 2009 WL 2579189 at *2 (E.D. Cal. Aug. 20, 2009). 12 Plaintiff represents that Polano resides in Switzerland. The U.S. Marshal is unable to serve 13 process in foreign countries. Accordingly, to the extent Plaintiff asks the Court to order the U.S. 14 Marshal to serve process abroad, the Court DENIES the request. 15 Plaintiff further represents that he must obtain the signature of a court official or an 16 attorney before he can serve process in Switzerland. Plaintiff asserts that obtaining such signature 17 would be burdensome, and he requests that the Court order “Court personnel to cooperate with 18 [Plaintiff] in serving process on Polano in a way that is not prohibitively expensively.” (Mot. at 19 3.) The Court will not conduct service on Polano for Plaintiff, and the Court DENIES Plaintiff’s 20 request to relieve any of the requirements of service, including the signature requirement. 21 Plaintiff represents that he has reached out to a private firm to assist in serving process in 22 compliance with the law, but Plaintiff is concerned that he is not permitted to do so based on a 23 docket notation regarding his in forma pauperis status. (See Dkt. No. 6.) The docket entry to 24 which Plaintiff refers does not prohibit Plaintiff from conducting service on his own. 1 25 Accordingly, Plaintiff is required to effect service on Polano in a manner that complies with the 26 27 28 1 The “no service” statement on the docket indicates that at the time of the entry, Plaintiff’s complaint was under Section 1915 review, and the Court would not order service of the complaint by the U.S. Marshal until the Section 1915 screening was complete. (See Dkt. No. 6.) 2 Case 4:21-cv-04184-JSW Document 45 Filed 09/09/21 Page 3 of 4 1 Federal Rules of Civil Procedure, and the Court GRANTS his request to do so. Finally, Plaintiff has contacted Court staff several times regarding service of his complaint. 2 3 Court staff is unable to provide legal advice. Plaintiff is advised that a Handbook for Pro Se 4 Litigants, which contains helpful information about proceeding without an attorney, is available 5 through the Court’s website. The Court also advises Plaintiff that he may seek assistance from the 6 Legal Help Center. Plaintiff may seek such assistance by calling the Legal Help Center at (415) 7 782-8982 or emailing to schedule an appointment with an attorney who may be 8 able to provide basic legal help, but not legal representation. 9 B. 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 Plaintiff Is Ordered to Show Cause Why His In Forma Pauperis Status Should Not Be Revoked. Plaintiff’s ability to hire a private firm to serve Polano raises questions regarding his in forma pauperis status. Proceeding “in forma pauperis is a privilege not a right.” Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965). The Court is authorized to review a litigant’s in forma pauperis status “at any time” during the pendency of a case. 28 U.S.C. § 1915(e)(2). Section 1915 provides that the Court shall dismiss the case if at any time the Court determines that the allegation of poverty is untrue. Id. To proceed in forma pauperis, “[a] plaintiff need not demonstrate that he is completely destitute, but his poverty must prevent him from paying the filing fee and providing his dependents with the necessities of life.” Kuhne-Irigoyen v. Gonzalez, No. 118-cv-01011-DADSKO, 2018 WL 3816732, at *3 (E.D. Cal. Aug. 9, 2018) (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). A “showing of something more than mere hardship must be made.” Id. (internal citations and quotations omitted); see also Temple v. Ellerthorpe, 586 F. Supp. 848, 851 (D.R.I. 1984) (“If an applicant has the wherewithal to pay court costs, or some part thereof, without depriving himself and his dependents (if any there be) of the necessities of life, then he should be required… to ‘put his money where his mouth is.’”). Plaintiff’s motion to proceed in forma pauperis was granted on June 8, 2021. (Dkt. No. 6.) In the present motion, however, Plaintiff represents that he is prepared to pay a private process server to conduct service on Polano in Switzerland. The process server’s website indicates that the 3 Case 4:21-cv-04184-JSW Document 45 Filed 09/09/21 Page 4 of 4 1 cost to serve process in Switzerland is at least $795.00.2 Plaintiff’s willingness to pay this amount 2 suggests Plaintiff has had sufficient funds to be required to pay the filing fee in full to proceed in 3 this action. Accordingly, within fourteen days of the date of this Order, Plaintiff is ORDERED TO 4 5 SHOW CAUSE why his in forma pauperis status should not be revoked and this action dismissed 6 without prejudice to refiling with prepayment of the filing fee. In the alternative, within the same 7 fourteen-day deadline, Plaintiff may pay the filing fee or file a notice of voluntary dismissal. CONCLUSION 8 For the foregoing reasons, Plaintiff’s motion for the Court to conduct Hague service is 9 10 DENIED. Plaintiff is responsible for conducting service on Defendant Polano. Plaintiff is FURTHER ORDERED TO SHOW CAUSE why the Court should not revoke United States District Court Northern District of California 11 12 his in forma pauperis status within fourteen days. IT IS SO ORDERED. 13 14 Dated: September 9, 2021 ______________________________________ JEFFREY S. WHITE United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 See 4

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