Bush v. Sunnyvale Department of Public Safety

Filing 162

ORDER by Judge Hamilton Granting Motion to Vacate Judgment in Part and Granting Intra-District Transfer (pjhlc2, COURT STAFF) (Filed on 12/15/2011) (Additional attachment(s) added on 12/15/2011: # 1 Certificate/Proof of Service) (nah, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES ALAN BUSH,

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Plaintiff,

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SUNNYVALE DEPARTMENT OF
PUBLIC SAFETY, et al.,

ORDER GRANTING MOTION
TO VACATE JUDGMENT IN
PART AND GRANTING INTRADISTRICT TRANSFER

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For the Northern District of California

United States District Court

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v.

No. C 08-1354 PJH

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Defendants.
_______________________________/
Plaintiff’s original complaint, naming more than 40 defendants, was filed on March

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10, 2008. On September 29, 2011, the court issued an order granting plaintiff until October

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21, 2011, in which to file proofs of service showing service of process on defendants,

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noting that an order to show cause had previously been issued and a further extension of

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time to serve defendants had been granted, with no ensuing response by plaintiff. On

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November 4, 2011, after plaintiff failed yet again to file proofs of service with the court by

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the court-imposed deadline, the court dismissed the action for plaintiff’s failure to comply

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with service deadlines, and entered judgment accordingly.

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Now before the court is plaintiff’s letter dated November 21, 2011, in which plaintiff

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asserts that, while he is in receipt of the court’s order of dismissal (presumably the

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November 4 order dismissing the case), due to the clerk’s failure to properly address

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correspondence to plaintiff, he never received the original September 29 order granting

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plaintiff until October 21 in which to file his proofs of service. Plaintiff furthermore contends

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that at least one waiver of service of summons was returned executed, demonstrating that

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at least one defendant has been served. Plaintiff requests that the court accordingly

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vacate the order of dismissal, that the court “reissue” an order that plaintiff file the

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remaining proofs of service, and that the case be reassigned to the San Jose Division for

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all further proceedings, as the San Jose venue is more convenient for plaintiff.

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Plaintiff’s letter admits that plaintiff received the court’s order of dismissal dated

San Jose, CA, 95112. The docket also reveals that the court’s September 29, 2011 order

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setting the October 21, 2011 deadline for filing proofs of service – which plaintiff asserts he

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never received – was also sent to the East Julian Street address, and that the court never

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received any indication that the September 29, 2011 order was returned to the clerk as

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undeliverable. Plaintiff is therefore presumed to have received the September 29 order,

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notwithstanding his protestations to the contrary. As such, plaintiff’s basis for requesting

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For the Northern District of California

November 4, 2011, which was sent to plaintiff’s address located at 471 East Julian Street,

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United States District Court

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that the court vacate its judgment is unpersuasive. Moreover, however, even if plaintiff is

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correct that he never received the court’s September 29 order, plaintiff does not dispute

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that this action has now been pending for almost four years, or that he has had multiple

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occasions in those four years on which to serve defendants, or that he still has yet to file

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any proofs of service. Indeed, plaintiff does not even state that he has, in fact, served any

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of the defendants. In view of all these circumstances, the court finds that no grounds have

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been presented that would justify vacating the court’s prior order of dismissal, and

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judgment for failure to effect timely service of process. See Fed. R. Civ. P. 4; see also

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Efaw v. Williams, 473 F.3d 1038, 1040-41 (9th Cir. 2007). Moreover, in view of plaintiff’s

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repeated failure to meet court-imposed deadlines and to effect service of process, the court

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concludes that any prejudice to plaintiff as a result of dismissal, is outweighed by the

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prejudice that the named but unserved defendants will suffer if the action is allowed to

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continue. For these reasons, the court hereby DENIES plaintiff’s request to vacate the

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order of dismissal and judgment entered on November 4, 2011.

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Notwithstanding the foregoing, however, and with respect to the single defendant

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Long Thang Cao, plaintiff is correct that the docket shows that a waiver of service was

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returned executed on December 8, 2010. Thus, the instant action should not have been

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dismissed for failure to effect service of process, as to this specific defendant. The court

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accordingly VACATES its November 4, 2011 order of dismissal and judgment with respect

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to Long Than Cao only, and the clerk is ordered to re-open the case accordingly.

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The court furthermore finds that plaintiff has demonstrated good cause for

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transferring the instant action back to the San Jose Division of this court. Plaintiff has

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requested transfer on grounds that he resides a short distance from the San Jose

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courthouse, and that in view of his status as a pro se plaintiff proceeding in forma pauperis,

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he will be unable to afford the added travel and postage expenses required to prosecute his

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action in the Oakland division. The court finds that these reasons are sufficient to
demonstrate the propriety of an intradistrict transfer for the convenience of the parties and

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For the Northern District of California

United States District Court

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in the interests of justice. See Civ. L. Rule 3-2(h). The court therefore GRANTS plaintiff’s

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motion to transfer, and the action shall be reassigned accordingly.

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Finally, to the extent that plaintiff has filed a notice of appeal with regard to the

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court’s November 4, 2011 order, plaintiff should take note of the instant ruling in order to

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ascertain its effect, if any, on the scope of his pending appeal. The court furthermore notes

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that the Ninth Circuit instructed plaintiff by way of its order dated December 5, 2011, to pay

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all docketing and filing fees within 21 days of the date of its order, or alternatively, to file a

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motion to proceed in forma pauperis before the Ninth Circuit Court of Appeals. Plaintiff

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appears to have misapprehended the Ninth Circuit’s directive, however, as he filed a

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motion for leave to appeal in forma pauperis in this court. Plaintiff is therefore instructed

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that, if he wishes his motion to proceed in forma pauperis on appeal to be considered, he

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must re-file his motion before the Ninth Circuit. Plaintiff’s pending motion for leave to

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appeal in forma pauperis is accordingly DENIED.

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IT IS SO ORDERED.

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Dated: December 14, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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