De Tagle v. Santa Clara County, San Jose Police Department

Filing 16

ORDER granting 14 Ex Parte Application to Serve A Third Party Subpoena. Signed by Magistrate Judge Virginia K. DeMarchi on 2/5/2024. (vkdlc1, COURT STAFF) (Filed on 2/5/2024)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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AUSTIN DE TAGLE,

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Plaintiff,

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v.

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United States District Court
Northern District of California

Case No. 23-cv-05095-VKD

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SAN JOSE POLICE OFFICER JULIAN
#4610,

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Defendant.

ORDER GRANTING EX PARTE
APPLICATION TO SERVE A THIRDPARTY SUBPOENA
Re: Dkt. No. 14

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Plaintiff Austin de Tagle, who is representing himself, asks permission to serve a third-

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party subpoena on the City of San Jose prior to the Rule 26(f) conference in order to obtain contact

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information for defendant San Jose Police Officer Julian, #4610 (“Officer Julian”). Dkt. No. 14.

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For the reasons explained below, the Court grants the application.

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I.

BACKGROUND

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Office Julian is the sole defendant named in Mr. de Tagle’s first amended complaint

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(“FAC”) in this civil rights action. See Dkt. No. 6. The Court has previously issued orders

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granting Mr. de Tagle’s application to proceed in forma pauperis, screening the FAC pursuant to

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28 U.S.C. § 1915(e), and directing the U.S. Marshal to serve the FAC on Officer Julian. Dkt. Nos.

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5, 7. The Marshal attempted to serve Officer Julian at the San Jose Police Department but was

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unable to effect service because “Officer Julian #4610 resigned from SJPD in April of 2023.”

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Dkt. No. 9. Noting that “[a]s a general matter, it is the responsibility of the plaintiff to determine

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the defendant’s whereabouts in order to effect service,” the Court directed Mr. de Tagle to provide

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updated contact information to allow the Marshal to effect service on Officer Julian. Dkt. No. 10.

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In his ex parte application, Mr. de Tagle explains that he has made several attempts to

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obtain contact information for Officer Julian from the City, but his efforts have been unsuccessful.

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See Dkt. No. 14 (application), Dkt. No. 15 (declaration in support). Mr. de Tagle specifically

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alleges that the City’s Human Resources department refused to release Officer Julian’s contact

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information due to “privacy issues.” Dkt. No 15 at 2. He asks the Court to allow him to serve a

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third-party subpoena on the City seeking Officer Julian’s “full name, current address, last known

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contact information, [and] email address.” Dkt. No. 14 at 2.

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II.

While the general rule is that “discovery proceedings take place only after the defendant

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United States District Court
Northern District of California

DISCUSSION

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has been served,” the rule is subject to certain exceptions, such as “permitting limited discovery to

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ensue after filing of the complaint to permit the plaintiff to learn the identifying facts necessary to

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permit service on the defendant.” Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 577 (N.D.

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Cal. 1999). In the context of proceedings against “John Doe” defendants, the Ninth Circuit has

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stated that “where the identity of the alleged defendant is not known prior to the filing of a

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complaint, the plaintiff should be given an opportunity through discovery to identify the unknown

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defendants, unless it is clear that discovery would not uncover the identities, or that the complaint

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would be dismissed on other grounds.” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir.

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1999) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)); see also Gillespie v.

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Torres, No. 20-CV-03735-DMR, 2020 WL 6710090, at *5 (N.D. Cal. Nov. 16, 2020); Anaya v.

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Marin Cnty. Sheriff, No. 13-CV-04090-WHO, 2014 WL 6660415, at *5-6 (N.D. Cal. Nov. 24,

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2014).

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It appears that the San Jose Police Department has at least some information concerning

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Officer Julian’s full name and contact information, and that discovery of that information would

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likely enable Mr. de Tagle to serve the FAC on Officer Julian. See Dkt. No. 9. As the Court

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concluded in its screening order, the FAC states a plausible Fourth Amendment false arrest claim

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under 42 U.S.C. § 1983 for the purposes of 28 U.S.C. § 1915(e). See Dkt. No. 7. Thus, Mr. de

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Tagle is entitled to obtain the defendant’s contact information in order to effect service.

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The Court is sensitive to the City’s concerns about the privacy of its employees.

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Accordingly, it grants Mr. de Tagle’s application and orders as follows:
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1.

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City to produce documents sufficient to show Officer Julian’s full name and last known residential

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address and phone number, using the U.S. Courts AO 88B document subpoena form, a copy of

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which is attached to this order.1 Mr. de Tagle shall file the completed subpoena on the Court’s

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docket by February 19, 2024.
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Once Mr. de Tagle files an appropriate, completed subpoena, the Court will direct

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the U.S. Marshal to serve it on the City of San Jose, together with a copy of this order. See Fed.

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R. Civ. P. 45(b); 28 U.S.C. § 1915(d).
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United States District Court
Northern District of California

Mr. de Tagle shall prepare a subpoena directed to the City of San Jose asking the

Instead of producing responsive documents to the subpoena to Mr. de Tagle, the

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City may file the responsive documents with the Court ex parte and under seal, and may seek a

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protective order providing that the information shall be used solely by the Marshal to effect

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service on Officer Julian.
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service of the FAC on Officer Julian to March 18, 2024. See Dkt. No. 13; Fed. R. Civ. P. 4(m).
IT IS SO ORDERED.

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The Court finds good cause to extend the February 16, 2024 deadline to effect

Dated: February 5, 2024

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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Fillable PDF and Microsoft Word versions of this form are available on the Court’s website at:
https://www.cand.uscourts.gov/forms/civil-forms/.
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