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