Sturgis v. Rupf et al

Filing 61

ORDER by Judge Lucy H. Koh granting 55 Motion to Quash ; DIRECTING PLAINTIFF TO LOCATE UNSERVED DEFENDANT (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 1/6/2012)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 LAMOS WAYNE STURGIS, 12 Plaintiff, 13 v. 14 15 DEPUTY SHERIFF DROLLETE, et al., 16 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) No. C 10-3680 LHK (PR) ORDER GRANTING DEFENDANTS’ MOTION TO QUASH SERVICE; DIRECTING PLAINTIFF TO LOCATE UNSERVED DEFENDANT 17 Plaintiff, a state prisoner, filed an amended pro se prisoner complaint under 42 U.S.C. 18 § 1983, arguing that Defendants used excessive force upon him, in violation of the Eighth 19 Amendment. On June 23, 2011, Defendants filed a motion for summary judgment. Plaintiff has 20 filed an opposition. Defendants filed a reply, and Plaintiff filed a “rebuttal” to Defendants’ 21 reply. The motion is now submitted, and under the Court’s consideration. 22 On September 19, 2011, the Clerk re-served a summons on Defendant Rupf. On 23 November 15, 2011, the summons was returned executed. On November 22, 2011, counsel for 24 Defendants filed a motion to quash the service of process. 25 Rule 12(b)(5) of the Federal Rules of Civil Procedure authorizes a defendant to move for 26 dismissal due to insufficient service of process. When a defendant challenges the sufficiency of 27 service, plaintiff bears the burden of establishing that service was valid under Rule 4 of the 28 Order Granting Defendants’ Motion to Quash Service; Directing Plaintiff to Locate Unserved Defendant P:\pro-se\sj.lhk\cr.10\Sturgis380misc 1 Federal Rules of Civil Procedure. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). A 2 federal court lacks personal jurisdiction over a defendant if service of process is insufficient. 3 Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). “[W]ithout 4 substantial compliance with Rule 4 neither actual notice nor simply naming the defendant in the 5 complaint will provide personal jurisdiction.” Direct Mail Specialists, Inc. v. Eclat 6 Computerized Technologies, 840 F.2d 685, 688 (9th Cir. 1988) (internal quotation marks and 7 citations omitted). If the plaintiff is unable to satisfy his burden of showing service in 8 compliance with Rule 4, the Court has discretion either to dismiss the action or to retain the 9 action and quash the service of process. See Stevens v. Sec. Pac. Nat’l Bank, 538 F.2d 1387, 10 1389 (9th Cir. 1976). 11 Here, Defendants argue that the U.S. Marshal’s Service mailed a copy of the summons 12 and amended complaint to Rupf at the Sheriff’s Department. However, Rupf retired from the 13 Sheriff’s Department in January 2011, and did not authorize anyone at the Sheriff’s Department 14 to accept service on his behalf. 15 The Court has looked into whether Rupf has been served in this matter. As in all Section 16 1983 prisoner cases filed in this Court, the U.S. Marshal’s office mailed to Rupf, at the Contra 17 Costa County Sheriff’s Department, his last place of business, a summons and a copy of the 18 complaint, as well as a notice and acknowledgment of receipt and summons. Upon receipt of the 19 forms at Rupf’s place of business, customarily, the litigation coordinator forwards the 20 appropriate forms to the California Attorney General’s Office for execution. Regardless of 21 whether that occurred in this case, the California Attorney General’s Office does not represent 22 county officials. 23 “[A]n incarcerated pro se plaintiff proceeding [IFP] is entitled to rely on the U.S. Marshal 24 for service of the summons and complaint, and . . . should not be penalized by having his action 25 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 26 perform the duties required of each of them” under 28 U.S.C. § 1915 and Federal Rule of Civil 27 Procedure 4. Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). Because Plaintiff is 28 proceeding IFP, and service has not been effectuated pursuant to Rule 4, Defendants’ motion to Order Granting Defendants’ Motion to Quash Service; Directing Plaintiff to Locate Unserved Defendant 2 P:\pro-se\sj.lhk\cr.10\Sturgis380misc 1 quash service is GRANTED. 2 Upon a finding that service was not proper, the Court in its discretion may dismiss the 3 action or quash service of process. Stevens, 538 F.2d at 1389. The Court finds that there is good 4 cause to retain this action rather than dismiss it because Plaintiff is entitled to rely upon the U.S. 5 Marshal for service, and Plaintiff had no choice regarding the manner of service chosen. 6 The Court cannot order personal service upon Rupf without a physical address. Plaintiff 7 has not provided any other information regarding the location of Rupf. Where, as here, the 8 Marshal is unable to effectuate service because Plaintiff has not provided sufficient information 9 to locate the Rupf, Plaintiff must remedy the situation or face dismissal of Rupf, as an unserved 10 Defendant. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994), abrogated on other 11 grounds by Sandin v. Conner, 515 U.S. 472 (1995). Consequently, Plaintiff must either 12 effectuate service on Rupf, or provide the Court with his current location such that the U.S. 13 Marshal is able to effectuate service. Plaintiff’s failure to do so within thirty (30) days of the 14 filing date of this order will result in dismissal of the claims against Rupf pursuant to Rule 15 4(m). 16 The Clerk of the Court shall send a copy of this order to the litigation coordinator at 17 the Contra Costa County Sheriff’s Department, who is requested to provide to the Court, 18 as a courtesy, any forwarding address information (under seal, if necessary) that is 19 available with respect to former Sheriff Warren E. Rupf, within thirty (30) days from the 20 filing date of this order. If no further information is available from the litigation coordinator, 21 and if Plaintiff fails to provide the requested information within thirty (30) days, Defendant Rupf 22 will be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil 23 Procedure. 24 25 26 IT IS SO ORDERED. DATED: 1/5/12 LUCY H. KOH United States District Judge 27 28 Order Granting Defendants’ Motion to Quash Service; Directing Plaintiff to Locate Unserved Defendant 3 P:\pro-se\sj.lhk\cr.10\Sturgis380misc

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