Harrera-Roman v. Harris, et al

Filing 57

ORDER Denying 54 Defendants' Motion to Dismiss Without Prejudice; and Directing US Marshal to Effect Service of Second Amended Complaint. The Court hereby Instructs the United States Attorney's Office to provide the US Marshal, in a con fidential memorandum, with the information necessary to personally serve Defendants. Following the receipt of any available information for Defendants, the Court Directs the US Marshal to serve a copy of Plaintiff's Second Amended Complaint an d Summons upon Defendants pursuant to Federal Rule of Civil Procedure 4(i)(3). Defendants' addresses should not appear on the U.S. Marshal Form 285s. The Court further Directs the US Marshal to serve the United States pursuant to Federal Rule of Civil Procedure 4(i)(1). Signed by Judge Michael M. Anello on 5/22/2013. (Pro Per Package Prepared)(All non-registered users served via U.S. Mail Service)(leh)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

DAVID HARRERA-ROMAN,

11

Plaintiff,

12
13

vs.

16

ORDER DENYING DEFENDANTS’
MOTION TO DISMISS WITHOUT
PREJUDICE;
[Doc. No. 54]

14
15

CASE NO. 11cv840-MMA (KSC)

JOHN HARRIS, et al.,
Defendants.

DIRECTING U.S. MARSHAL TO
EFFECT SERVICE OF SECOND
AMENDED COMPLAINT
PURSUANT TO Fed.R.Civ.P. 4(c)(3)
& 28 U.S.C. § 1915(d)

17
18

Defendants United States Border Patrol Agents John Harris, Jon P. Rauterkus,

19 Justin W. Gloyer (erroneously identified as Justin W. Glover), and Charles C. Loy
20 (erroneously identified as Charles C. Coy) (collectively “Defendants”) move to
21 dismiss this action pursuant to Federal Rules of Civil Procedure 12(b)(2) and
22 12(b)(5) for lack of personal jurisdiction and insufficient service of process. See
23 Doc. No. 54. Plaintiff David Harrera-Roman (“Plaintiff”) failed to file a timely
24 response and the Court took the matter under submission without a hearing in
25 accordance with Civil Local Rule 7.1.d.1. See Doc. No. 55. Thereafter, Plaintiff
26 filed a “Request for Judicial Notice,” in which he asserts that he did not file a
27 response to the pending motion to dismiss because he was not served with the
28 motion. See Doc. No. 56. For the reasons set forth below, the Court DENIES
-1-

11cv840

1 Defendants’ motion without prejudice and DIRECTS the United States Marshal to
2 effect service of Plaintiff’s Second Amended Complaint.
3
4

PROCEDURAL BACKGROUND
On April 20, 2011, Plaintiff, an inmate currently incarcerated at the United

5 States Penitentiary in Tucson, Arizona, and proceeding pro se and in forma
6 pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See Doc. No.
7 1. The Court liberally construed Plaintiff’s complaint as being brought pursuant to
8 Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971). See
9 Doc. No. 9. On August 8, 2011, Plaintiff filed a First Amended Complaint (“FAC”).
10 See Doc. No. 10. The Court found Plaintiff’s claims sufficiently pleaded to survive
11 the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2), 1915A(b), and
12 directed the United States Marshal to effect service of the FAC. See Doc. Nos. 12,
13 17.
14

On May 7, 2012, Plaintiff filed a motion to amend his complaint and a request

15 for a status update. See Doc. No. 29. On June 18, 2012, Defendants filed a response
16 to Plaintiff’s motion, which included a request to dismiss Plaintiff’s FAC pursuant to
17 Federal Rule of Civil Procedure 4(m) for improper service. See Doc. No. 32. On
18 December 28, 2012, Plaintiff filed a Second Amended Complaint (“SAC”).1
19 See Doc. No. 46. On March 11, 2013, the Court ordered Defendants to answer or
20 otherwise respond to Plaintiff’s SAC. See Doc. No. 51. Defendants now move to
21 dismiss the SAC. See Doc. No. 54. Defendants argue that Plaintiff never properly
22 served the FAC and has not attempted service of the SAC. As such, Defendants
23 argue that the Court lacks personal jurisdiction over them and the action should be
24
25

1

A discrepancy order was issued, noting that Plaintiff did not have leave to
amend and referencing the pending motion for leave to amend. See Doc. No. 45.
26 However, the SAC was accepted for filing. Id. In other words, the SAC was filed with
leave of court, as permitted by Federal Rule of Civil Procedure 15(a)(2). As this Court
27 noted in its March 11, 2013 Order, once a newly amended complaint is filed, it
supersedes the previously filed complaint and becomes the operative pleading.
28 See Doc. No. 51, citing Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997).
-2-

11cv840

1 dismissed.
2
3

DISCUSSION
Because Plaintiff is proceeding in forma pauperis in this case, as noted above,

4 he is entitled to have service effected by the United States Marshal with respect to
5 the SAC. See Fed. R. Civ. P. 4(c)(2). However, it appears that a summons did not
6 issue on the SAC, nor did Plaintiff receive an “IFP Package” after the SAC was
7 filed. As such, Plaintiff, who is an incarcerated individual, has had no means by
8 which to serve Defendants with the SAC.
9

Defendants are correct that Plaintiff’s time for serving the SAC expired on

10 April 29, 2013. See Fed. R. Civ. P. 4(m) (service within 120 days after complaint is
11 filed). However, where a delay in service is attributable to the court clerk, such as is
12 the case here, such delay constitutes “good cause” to avoid dismissal. Puett v.
13 Blandford, 912 F.2d 270, 273 (9th Cir. 1990) (“[P]laintiff should not be penalized by
14 having his or her action dismissed for failure to effect service where the U.S.
15 Marshal or the court clerk has failed to perform the duties required of each of them
16 under 28 U.S.C. § 1915(c) and Rule 4 of the Federal Rules of Civil Procedure.”); see
17 also, Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). “The duty of the court
18 to direct service and the duty of the appointed server to accomplish service through
19 reasonable efforts is not discretionary. In cases like this, then, service is inevitable .
20 . . The only question is how long that service will take and how much it will cost.”
21 Lieberman v. Walker, 2007 U.S. Dist. LEXIS 4059, 1-2 (C.D. Ill. 2007).
22

Accordingly, dismissal of this action is not appropriate and Plaintiff is entitled

23 to rely on the United States Marshal to effect personal service of the SAC upon
24 Defendants. See Puett, 912 F.2d at 275.
25
26

CONCLUSION
Based on the foregoing, the Court DENIES Defendants’ motion to dismiss

27 without prejudice. The Court hereby INSTRUCTS the United States Attorney’s
28 Office to provide the United States Marshal, in a confidential memorandum, with the
-3-

11cv840

1 information necessary to personally serve Defendants.
2

Following the receipt of any available information for Defendants, the Court

3 DIRECTS the United States Marshal to serve a copy of Plaintiff’s Second Amended
4 Complaint and summons upon Defendants pursuant to Federal Rule of Civil
5 Procedure 4(i)(3).2 Defendants’ addresses should not appear on the U.S. Marshal
6 Form 285s.
7

The Court further DIRECTS the United States Marshal to serve the United

8 States pursuant to Federal Rule of Civil Procedure 4(i)(1).3 All costs of service shall
9 be advanced by the United States pursuant to the Court’s Orders granting Plaintiff
10 leave to proceed in forma pauperis and directing service pursuant to 28 U.S.C. §
11 1915(d) and Fed.R.Civ.P. 4(c)(3). See Doc. Nos. 9, 12.
12

IT IS SO ORDERED.

13 DATED: May 22, 2013
14
15

Hon. Michael M. Anello
United States District Judge

16
17
18
19
20
21
22

2
“To serve a United States officer or employee sued in an individual capacity
23 for an act or omission occurring in connection with duties performed on the United
States’ behalf (whether or not the officer or employee is also sued in an official
24 capacity), a party must serve the United States and also serve the officer or employee
under Rule 4(e), (f), or (g).” Fed. R. Civ. P. 4(i)(3).
25
3
“To serve the United States, a party must: (A)(i) deliver a copy of the summons
26 and of the complaint to the United States attorney for the district where the action is
brought–or to an assistant United States attorney or clerical employee whom the United
27 States attorney designates in a writing filed with the court clerk–or (ii) send a copy of
each by registered or certified mail to the civil-process clerk at the United States
28 attorney's office; [and] (B) send a copy of each by registered or certified mail to the
Attorney General of the United States at Washington, D.C.” Fed. R. Civ. P. 4(i)(1).

-4-

11cv840