Denham v. Aranda et al

Filing 63

ORDER denying 61 Motion for Order for CDCR to Provide Full Legal Names of Aranda and Benvin and Order the USDC Clerk to Serve Defendants Aranda and Benvin by Publication. Signed by Magistrate Judge William V. Gallo on 5/16/11. (All non-registered users served via U.S. Mail Service)(lmt)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PAUL DENHAM,

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Plaintiff,

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v.

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ARANDA, et al.,

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Defendants.

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Civil No. 09-1505-JLS(WVG)
ORDER DENYING MOTION FOR ORDER
FOR CDCR TO PROVIDE FULL LEGAL
NAMES OF ARANDA AND BENVIN AND
ORDER THE USDC CLERK TO SERVE
DEFENDANTS ARANDA AND BENVIN
BY PUBLICATION
(DOC. # 61)

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Plaintiff Paul Denham (hereafter “Plaintiff”) seeks an order

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of the Court for the California Department of Corrections to provide

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him with the full legal names of unserved Defendants Aranda and

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Benvin and to order the Clerk of this Court to serve these Defen-

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dants by publication. The Court, having reviewed Plaintiff’s Motion

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and the applicable authority, and GOOD CAUSE APPEARING, hereby

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DENIES Plaintiff’s Motion.

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Procedural History

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On July 10, 2009, Plaintiff filed a Complaint Under The Civil
Rights Act, 42 U.S.C. §1983.

On August 31, 2009, the Court granted

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09cv1505

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Plaintiff’s Motion to Proceed in forma pauperis, and directed the

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United States Marshal to effect service of summons and complaint on

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Defendants. On October 27, 2009, the summonses served on Defendants

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Aranda and Benvin were returned unexecuted.1/

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On December 4, 2009, Defendants served and filed a Motion to

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Dismiss Plaintiff’s Complaint. On May 3, 2010, this Court filed a

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Report and Recommendation Granting Defendants’ Motion to Dismiss. On

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June 21, 2010, the District Judge assigned to this case adopted the

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Report and Recommendation and allowed Plaintiff to file a First

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Amended Complaint. On July 30, 2010, Plaintiff filed a First Amended

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Complaint.

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On August 12, 2010, Defendants filed a Motion to Dismiss

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Plaintiff’s First Amended Complaint. On December 30, 2010, this

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Court filed a Report and Recommendation Granting in part and Denying

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in part Defendants’ Motion to Dismiss. On February 4, 2011, the

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District

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Recommendation.

Judge

assigned

to

this

case

adopted

the

Report

and

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On March 16, 2011, Plaintiff filed a Motion for Court Order

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for Substituted Service on the Secretary of State for Defendants

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Aranda and Benvin.

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Leave of Court for Enlargement of Time To Complete Service on

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Defendants, and for a Court Order For Substituted Service on the

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Attorney General and/or the Secretary of State or the California

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Department of Corrections and/or Litigation Coordinator at Donovan

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State Prison.

On March 21, 2011, Plaintiff filed Motions for

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1/

On October 27, 2009, the summons served on Defendant Silvia Garcia
also was returned unexecuted. On May 16, 2011, Ms. Garcia’s attorney
waived the service of summons on her behalf.

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On March 25, 2011, the Court granted in part the motions

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noted in the preceding paragraph. The March 25, 2011 Order directed

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Defendants’ counsel to provide the last known addresses of Defen-

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dants Aranda and Benvin to the United States Marshal in a confiden-

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tial memorandum and for the United States Marshal to serve those

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Defendants at their last known addresses, as contained in the

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confidential

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Amended Complaint. On April 28 and May 2, 2011 respectively, the

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summonses for Aranda and Benvin were returned unexecuted.

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memorandum,

with

summonses

and

Plaintiff’s

First

Now, Plaintiff seeks the full legal names of Defendants

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Aranda and Benvin so that they can be served by publication.

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Discussion

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Plaintiff cites Fed. R. Civ. Pro. 4(e)(1) and California Code

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of Civil Procedure §415.50 to support his argument that he is

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entitled to serve Defendants Aranda and Benvin by publication.

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Fed. R. Civ. Pro 4(e)(1) states in pertinent part:

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(e) Unless federal law provides otherwise, an individual... may be served in a judicial district of the
United States by:
(1) following state law for serving a summons in an
action brought in courts of general jurisdiction in
the state where the district court is located or where
service is made;...

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California Code of Civil Procedure § 415.50 states in

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pertinent part:
(a) A summons may be served by publication if upon
affidavit it appears to the satisfaction of the court
in which the action is pending that the party to be
served cannot with reasonable diligence be served in
another manner specified in this article and that
either:
(1) a cause of action exists against the party upon
whom service is to be made or he or she is a necessary
or proper party to the action...
(b) The court shall order the summons to be published
in a named newspaper, published in the state, that is
most likely to give actual notice to the party to be
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served. If the party to be served resides or is
located out of this state, the court may also order
the summons to be published in a named newspaper
outside the state that is most likely to give actual
notice to that party...
(emphasis added)

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Here, Plaintiff requests that the Court order that the
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summonses to Defendants Aranda and Benvin be served by publication
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in a named newspaper in California. However, Plaintiff does not
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specify in what California-published newspaper the summonses should
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appear. In fact, neither he, nor the Court, could so specify,
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because he, and the Court, do not know if Defendants Aranda and
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Benvin reside or are located in California or any other place in the
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United States. Therefore, without more, the Court can not conclude
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that publication of the summons in a California-published newspaper
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is likely to give Defendants Aranda and Benvin actual notice of the
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summonses. As a result, Plaintiff’s Motion is DENIED.
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IT IS SO ORDERED.
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DATED:

May 16, 2011

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Hon. William V. Gallo
U.S. Magistrate Judge

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