McGee v. Milpitas Police Department

Filing 48

ORDER denying 45 Plaintiff's Motion to Alter or Amend Judgment. Signed by Magistrate Judge Virginia K. DeMarchi on 11/15/2023. (vkdlc1, COURT STAFF) (Filed on 11/15/2023)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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ANTHONY MCGEE,

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Plaintiff,

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v.

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MILPITAS POLICE DEPARTMENT, et al.,

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United States District Court
Northern District of California

Case No. 23-cv-02559-VKD

Defendants.

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ORDER DENYING PLAINTIFF'S
MOTION TO ALTER OR AMEND
JUDGMENT
Re: Dkt. No. 45

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On October 23, 2023, the Court issued an order dismissing Mr. McGee’s amended

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complaint with prejudice and entered judgment against him. Dkt. Nos. 43, 44. Now, Mr. McGee,

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who is representing himself, has filed a motion to alter or amend the judgment pursuant to Rule

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59(e) of the Federal Rules of Civil Procedure. Dkt. No. 45. Defendants Milpitas Police

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Department and the City of Milpitas oppose this motion. Dkt. No. 46.
The Court finds this matter suitable for decision without oral argument. Civil L.R. 7-1(b).

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Upon consideration of the moving papers and the applicable law, the Court denies Mr. McGee’s

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motion to alter or amend the judgment.

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I.

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LEGAL STANDARD
The Court may alter or amend a judgment under Rule 59(e) upon a showing of one of four

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grounds: (1) the motion is necessary to correct manifest errors of law or fact; (2) the moving party

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presents newly discovered or previously unavailable evidence; (3) the motion is necessary to

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prevent manifest injustice; or (4) there is an intervening change in controlling law. Turner v.

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Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003). A district court has

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“considerable discretion” in deciding a Rule 59(e) motion. Id. Rule 59(e) “offers an extraordinary

United States District Court
Northern District of California

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remedy, to be used sparingly in the interests of finality and conservation of judicial resources.”

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Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (internal quotations and citation omitted).

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Indeed, a Rule 59(e) motion “‘should not be granted, absent highly unusual circumstances[.]’” Id.

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(quoting Kona Enterps., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Moreover, a

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Rule 59(e) motion “may not be used to relitigate old matters, or to raise arguments or present

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evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v.

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Baker, 554 U.S. 471, 485 n.5 (2008) (internal quotations and citation omitted); see also Kona

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Enterps., Inc., 229 F.3d at 890 (“A Rule 59(e) motion may not be used to raise arguments or

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present evidence for the first time when they could reasonably have been raised earlier in the

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litigation.”).

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II.

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DISCUSSION
Mr. McGee claims that the judgment against him was entered on the basis of mistakes of

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law and fact because: (1) defendants’ motion to dismiss was not filed within 21 days of service of

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the summons and complaint; (2) the Clerk erred by declining to enter defaults against defendants;

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and (3) defendants failed to answer his complaint. See Dkt. No. 45 at 4-12. None of these

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arguments has merit.
Defendants’ Motion to Dismiss

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A.

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Mr. McGee argues that the defendants’ motion to dismiss (Dkt. No. 30) was not timely

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filed within 21 days of service, as required by the Federal Rules of Civil Procedure. Dkt. No. 45

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at 4-6; Fed. R. Civ. P. 12(a)(1)(A)(i). This contention is incorrect.

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Mr. McGee asserts that defendants were informed of his complaint on “June 02, 2023 or

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sometime shortly thereafter.” Dkt. No. 45 at 4. However, defendants were not served on that

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date. On June 2, 2023, the Court issued an order screening Mr. McGee’s complaint, and directing

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the Clerk to issue summons and the U.S. Marshal to serve the summons and complaint on

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defendants. Dkt. No. 8. The summons were not actually issued until June 27, 2023 and the first

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defendant, the City of Milpitas, was not served until July 7, 2023. Dkt. Nos. 12, 16. The other

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defendant, the Milpitas Police Department, was not served until July 26, 2023. Dkt. No. 22.

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Rule 12 requires defendants to file a responsive pleading “within 21 days after being
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served with the summons and complaint.” Fed. R. Civ. P. 12(a)(1)(A)(i). Here, that deadline was

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July 28, 2023 for the City of Milpitas (21 days after service on July 7) and August 16, 2023 for the

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Milpitas Police Department (21 days after service on July 26). See Dkt. No. 16. On July 28,

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2023, all defendants moved for an extension of their responsive pleading deadlines to August 18,

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2023. Dkt. No. 19; Fed. R. Civ. P. 6(b). Mr. McGee did not oppose this request, and the Court

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granted it. Dkt. Nos. 20, 25. Defendants then filed their motion to dismiss on August 18, 2023,

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pursuant to the Court’s order. Dkt. No. 30. This motion was timely.
B.

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Mr. McGee next argues that the Clerk’s denial of his motions for entry of default were

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mistaken. Dkt. No. 45 at 7-10. This contention is also incorrect.
Mr. McGee claims that defendants “[have] been in default since the second issuance of

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United States District Court
Northern District of California

Denial of Mr. McGee’s Motions for Default

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summons,” by which Mr. McGee presumably means June 27, 2023. Dkt. No. 45 at 7. Again, Mr.

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McGee misunderstands the distinction between issuance of summons and service of summons.

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On June 27, 2023, the Clerk issued the summons. See Dkt. No. 12, Fed. R. Civ. P. 4(b) (“On or

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after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal.

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If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for

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service on the defendant.”). The summons were not served on defendants until July 7 and 26,

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2023, when Deputy U.S. Marshals physically delivered the summons and complaint to defendants.

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Dkt. Nos. 12, 16; Fed. R. Civ. P. 4(c), (j). Only service of summons triggers defendants’

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obligation to respond to Mr. McGee’s complaint. See Fed. R. Civ. P. 12(a)(1)(A)(i).
Mr. McGee cites to Rule 5 in support of his argument that defendants received notice of

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this lawsuit by mail.1 Dkt. No. 45 at 7-8. But Rule 5 does not apply here. Rule 5 generally

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describes the requirements for serving papers after a case is commenced, while Rule 4 governs

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service of the summons and complaint. See Fed. R. Civ. P. 5(a)(1)(B) (discussing service of

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“pleading[s] filed after the original complaint”) (emphasis added); Fed. R. Civ. P. 4(j)(2)

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The record does not reflect that the summons here were mailed to defendants, as Mr. McGee
asserts. See Dkt. No. 45 at 7-8; Dkt. No. 12.
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(describing requirements for serving state and local governments).
Because defendants were not served with summons and the complaint until July 7 and July

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26, 2023, and because their deadlines to respond to the complaint were later extended by court

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order, defendants were not in default at any time.
C.

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Mr. McGee argues that defendants failed to file a timely answer to his complaint and for

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this reason, the Court should not have granted their motion to dismiss. Dkt. No. 45 at 1-13. This

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contention is incorrect as well.
Rule 12 does not set a deadline for pre-answer motions different than that for responsive

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United States District Court
Northern District of California

Defendants’ Failure to Answer

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pleadings, as Mr. McGee claims. Dkt. No. 45 at 12. It simply provides that a such a motion

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“must be made before pleading if a responsive pleading is allowed.” Fed. R. Civ. P. 12(b); see

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also Aetna Life Ins. Co. v. Alla Med. Servs., Inc., 855 F.2d 1470, 1474 (9th Cir. 1988) (“This

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circuit allows a motion under Rule 12(b) any time before the responsive pleading is filed.”). Thus,

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defendants may respond to a complaint by filing either an answer or a motion under Rule 12(b).2

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Once a defendant files a motion under Rule 12(b), its deadline to file an answer or other

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responsive pleading is suspended pending the court’s decision on the motion. Fed. R. Civ. P.

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12(a)(4)(A) (“[S]erving a motion under this rule alters these periods [i.e. the deadlines to file an

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answer] as follows . . . if the court denies the motion or postpones its disposition until trial, the

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responsive pleading must be served within 14 days after notice of the court's action.”).
Here, defendants filed a motion to dismiss under Rule 12(b)(6) on August 18, 2023, the

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date that their answer was due. Dkt. No. 30. This relieved them of their obligation to file an

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answer until this Court denied their motion or postponed its disposition. Fed. R. Civ. P.

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12(a)(4)(A). Because the Court granted defendants’ motion, the case was dismissed, and

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This District’s handbook for pro se litigants describes this procedure in some detail: “Under
Rule 12 of the Federal Rules of Civil Procedure, there are two general ways to respond [to a
complaint]. You can: 1. File an answer to the complaint, OR 2. File a motion challenging some
aspect of the complaint. If you file a motion, you may still have to file an answer but only after
the Court rules on your motion.” U.S. District Court, Northern District of California,
Representing Yourself in Federal Court: A Handbook for Pro Se Litigants 18 (2020), available on
the Court’s website at https://cand.uscourts.gov/pro-se-litigants/.
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defendants were not required to answer.

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III.

CONCLUSION
Mr. McGee has identified no “manifest errors of law or fact.” Turner, 338 F.3d at 1063.

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Moreover, most of the arguments Mr. McGee makes in support of his motion are identical to

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arguments the Court has already addressed and are not new in any respect. See Dkt. No. 42 (order

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denying previous motions for default). Mr. McGee’s motion to alter or amend the judgment is

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denied.

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IT IS SO ORDERED.
Dated: November 15, 2023

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United States District Court
Northern District of California

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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