Redon v. San Diego, County of, CA et al

Filing 66

ORDER: Plaintiff's Motion for Default Judgment is denied. (Dkt # 55 ) Defendants Sergeant Bulkowski, Sergeant Grubbs, Sergeant Shaw, Officer Gibson, Officer Pottin, Officer Natal, former San Diego Chief of Police William Lansdowne, Michael Lee Ficken; and Diana Doherty are dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m). Signed by Judge William Q. Hayes on 2/3/2016. (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JASON A. REDON,

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Plaintiff,
vs.
SAN DIEGO COUNTY, CITY OF
SAN DIEGO, ANDRES RUIZ,
BRANDON JORDAN, DEREK
MILLER, SGT BULKOWSKI, SGT D
GRUBBS, OFFICER GIBSON,
OFFICER POTTIN, OFFICER
NATAL, OFFICER JOHN DOES 1-X,
WILLIAM LANSDOWNE, JAN
GOLDSMITH, MICHAEL LEE
FICKEN, MIRIAM MILSTEIN,
DIANA DOHERTY, JOHN DOES 2X, SGT SHAW, UNNAMED SAN
DIEGO POLICE OFFICER,

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CASE NO. 13cv1765 WQH
(KSC)
ORDER

Defendants.
HAYES, Judge:
The matter before the Court is Plaintiff’s Motion for Default Judgment. (ECF

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No. 55).

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I. Background

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On August 22, 2012, Plaintiff Jason A. Redon (“Plaintiff”) commenced this

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action by filing a complaint in the San Diego Superior Court alleging state and federal

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constitutional violations. (ECF No. 1-2 at 1). The Complaint named the following

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individuals and entities as defendants: Officer Brandon Jordan; Officer Andres Ruiz;

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Investigator Derek Miller; San Diego City Attorney Jan Goldsmith; Deputy City
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Attorney Miriam Milstein; and the City of San Diego, including the San Diego Police

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Department (“Initial Defendants”). Id. On August 27, 2012, Plaintiff filed an amended

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complaint in the San Diego Superior Court, naming the same Defendants. (ECF No. 1-2

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at 2).

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Plaintiff filed a second amended complaint on July 5, 2013. (ECF No. 1-3.) In

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addition to the Initial Defendants, Plaintiff added the following individuals/entities as

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defendants: San Diego County; Sergeant Bulkowski; Sergeant Grubbs; Officer Gibson;

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Officer Pottin; Officer Natal; San Diego Chief of Police William Lansdowne; Deputy

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City Attorney Michael Lee Ficken; and Deputy City Attorney Diana Doherty (“Default

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Defendants”). Id.

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On July 29, 2013, Defendants filed a notice of removal of civil action in this

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Court. (ECF No. 1). On August 8, 2013 a Motion to Dismiss and a Motion for a More

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Definite Statement was filed. (ECF No. 2). Plaintiff opposed both the Notice of

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Removal and the Motion to Dismiss. (ECF Nos. 4 & 6). On November 8, 2013, the

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Court denied the opposition to the Notice of Removal, granted the Motion to Dismiss,

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and granted Plaintiff leave to amend. (ECF No. 7). On December 23, 2013, Plaintiff

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filed a third amended complaint, which is the operative pleading. (ECF No. 8). The

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third amended complaint added two additional defendants, Sergeant Shaw and an

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“Unnamed San Diego Police Officer.” Id. A summons listing all of the Defendants

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named in the third amended complaint was issued by the Clerk of this Court and mailed

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to Plaintiff at his docket address with instructions that the summons needed to be

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served. (ECF No. 9).

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On January 13, 2014, the six Initial Defendants filed a Motion to Dismiss for

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failure to state a claim. (ECF No. 11) On July 28, 2014, this Court granted in part and

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denied in part the Motion to Dismiss. (ECF No. 23). The Court dismissed all of

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Plaintiff’s state law claims, the 28 U.S.C. § 1983 Monell claim, and all of the claims

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against Defendants City of San Diego, City Attorney Jan Goldsmith, and Miriam

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Milstein.
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On August 11, 2014, the three remaining Initial Defendants (Ruiz, Jordan and

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Miller) filed an Answer to the amended complaint. (ECF No. 24). On July 24, 2015,

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these Defendants filed a Motion for Judgment on the Pleadings. (ECF No. 41). On

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December 17, 2015, the Court granted the Motion for Judgment on the Pleadings in part

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and denied in part. (ECF No. 53). The only remaining claim (Count 3) alleges

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excessive use of force against Defendants Ruiz and Jordan.

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On December 17, 2015, the Court also issued an Order notifying Plaintiff that the

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docket reveals no proof of service for the following Defendants: Sergeant Bulkowski;

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Sergeant Grubbs; Sergeant Shaw; Officer Gibson; Officer Pottin; Officer Natal; former

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San Diego Chief of Police William Lansdowne; Michael Lee Ficken; and Diana

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Doherty. (ECF No. 54). Plaintiff was informed that the Court would dismiss this action

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as to these Defendant without prejudice on January 11, 2016, unless, before that date,

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Plaintiff files proof that service of the Complaint was effectuated on these Defendants

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pursuant to the Federal Rules of Civil Procedure or otherwise shows cause why this

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case should not be dismissed as to these Defendants.

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On December 21, 2015, Plaintiff filed a Motion for Default Judgment against

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Defendants Bulkowski, Grubbs, Gibson, Pottin, Natal, Lansdowne, Ficken, and

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Doherty (hereinafter referred to collectively as the “Default Defendants”).1 (ECF No.

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55). Plaintiff contends that the second amended complaint filed July 5, 2013, was “duly

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served on the respondent superior, City of San Diego,” and then individually served

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defendants “Lansdowne, Pottin, Gibson, Bulkowski, Natal, Grubbs, Michael Lee

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Ficken, and Diana Doherty” on August 26, 2013. Id. at 1-2. Plaintiff attaches Exhibit

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A, which consists of two proofs of service, both dated August 26, 2013. The first proof

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of service states that “Chase Alan Shivers” personally served the “Amended Complaint”

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on “Michael Ficken” and “Diana Doherty” at “1200 Third Avenue, Suite 300 San Diego

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CA, 92101.” (ECF No. 55-1 at 2). The second proof of service states that “Chase Alan

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Shivers” personally served “Chief W. Landsdowe, Sgt Bulkowski, Sgt D Grubbs,

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Defendant Shaw is not mentioned in the Motion for Default Judgment.
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Officer Gibson, Officer Natal,” and “Officer Pottin” at “2400 5th Ave. Unit 218 San

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Diego CA, 92101.” Id. at 3. Plaintiff also attaches Exhibit B, which is a declaration of

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service from Chase Alan Shivers, dated December 18, 2013, in which states that he

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served the “AMENDED CIVIL COMPLAINT VERSION 3.0” by placing a sealed copy

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of it at a United States Postal Service mailbox at in downtown San Diego and sending

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it to “Catherine L. Turner at the Office of the City Attorney of San Diego 1200 Third

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Ave, Suite 1100 San Diego CA, 92101-4100.” (ECF No. 55-2 at 2).

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On January 11, 2016, Defendants Sergeant Bulkowski, Sergeant Grubbs,

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Sergeant Shaw, Officer Gibson, Officer Pottin, Officer Natal, former San Diego Chief

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of Police William Lansdowne, Michael Lee Ficken; and Diana Doherty specially

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appeared for the limited purpose of filing an Opposition to Motion for Default

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Judgment on the grounds that they had not been properly served in accordance with

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Rule 4 of the Federal Rules of Civil Procedure. (ECF No. 64). Defendants contend that

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summons were never served on any of the Default Defendants and therefore the Court

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does not have personal jurisdiction.

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On January 19, 2016, Plaintiff filed a reply. Plaintiff attaches a Proof of Personal

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Service dated July 5, 2013, which states that “Chase Alan Shivers” personally served

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the “Amended Complaint” on the “City Attorney of San Diego.” (ECF No. 65-1 at 2).

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Plaintiff also attaches a copy of an email sent to “[e-mail],” On December

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8, 2014. This email contains a picture of the first proof of service attached as Exhibit

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A to Plaintiff’s motion (ECF No. 55-1 at 2). (ECF No. 65-2 at 2).

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II. Discussion

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A. Judicial Notice

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Defendants request that the Court take judicial notice of two document: Exhibit

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1, Superior Court of California, County of San Diego, Register of Actions Notice,

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Redon v. Jordan, Case No. 37-2012-00102839-CU-CR-CTL and Exhibit 2, United

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States District Court, Southern District of California, Civil Docket for Redon v. County

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of San Diego, et al., Case No. 13-cv-01765- WQH-KSC.
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Federal Rule of Evidence 201 provides that “[t]he court may judicially notice a

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fact that is not subject to reasonable dispute because it . . . is generally known within

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the trial court’s territorial jurisdiction; or . . . can be accurately and readily determined

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from sources whose accuracy cannot reasonably be questioned.” Fed R. Evid. 201(b).

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[U]nder Fed. R. Evid. 201, a court may take judicial notice of ‘matters of public

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record.’” Lee, 250 F.3d at 689 (quoting Mack v. South Bay Beer Distrib., 798 F.2d

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1279, 1282 (9th Cir.1986)). Courts may take judicial notice of “proceedings in other

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courts, both within and without the federal judicial system, if those proceedings have

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a direct relation to matters at issue.” U.S. ex rel. Robinson Rancheria Citizens Council

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v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (citation and internal quotations

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omitted). Plaintiff does not object to or question the authenticity of the documents filed

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by Defendants. The Court will take judicial notice of Defendants first document,

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Exhibit 1. However, the Court finds it unnecessary to take judicial notice of Exhibit 2,

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a copy of the docket in this case, as it is readily available to the Court. See, e.g., Asvesta

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v. Petroutsas, 580 F.3d 1000, 1010 n. 12 (9th Cir. 2009) (denying request for judicial

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notice where judicial notice would be “unnecessary”).

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B. Motion for Default Judgment

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“[W]hen a court is considering whether to enter a default judgment, it may

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dismiss an action sua sponte for lack of personal jurisdiction. In re Tuli, 172 F.3d 707,

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712 (9th Cir. 1999). “A federal court is without personal jurisdiction over a defendant

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unless the defendant has been served in accordance with Fed. R. Civ. P. 4.” Benny v.

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Pipes, 799 F.2d 489, 492 (9th Cir. 1986). “It is the plaintiff's burden to establish the

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court’s personal jurisdiction over a defendant.” Doe v. Unocal Corp., 248 F.3d 915,

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922 (9th Cir. 2001).

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Rule 4(b) requires that “the clerk must sign, seal, and issue” the summons for

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service. See Fed. R. Civ. P. 4(b). Rule 4(c) requires that a summons be served with a

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copy of the complaint. See Fed. R. Civ. P. 4(c). Service may be accomplished by

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delivering a copy of the summons and complaint to the individual personally; by
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leaving a copy of each at the individual’s dwelling or usual place of abode with

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someone of suitable age and discretion who resides there; or, by delivering a copy of

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each to an agent authorized by appointment or by law to receive service of process. See

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Fed. R. Civ. P. 4(e)(2)(A)-(C). “The plaintiff is responsible for having the summons

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and complaint served within the time allowed by Rule 4(m) . . . .” See Fed. R. Civ. P.

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4(c). “If a defendant is not served within 90 days after the complaint is filed, the court

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. . . must dismiss the action without prejudice against that defendant or order that

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service be made within a specified time.” Fed. R. Civ. P. 4(m). “Once service is

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challenged, plaintiff[] bear[s] the burden of establishing that service was valid under

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Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir.2004). If the plaintiff is

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unable to satisfy its burden of demonstrating effective service, the court has discretion

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to either dismiss or retain the action. See Stevens v. Sec. Pac. Nat'l Bank, 538 F.2d

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1387, 1389 (9th Cir.1976).

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The record indicates that Plaintiff filed an amended complaint in state court on

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July 5, 2013 which initially named all of the Default Defendants as parties. The record

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does not show that a new or amended summons was issued. See ECF No. 64-2 at 4.

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On December 23, 2013, Plaintiff filed a third amended complaint, the operative

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pleading, and a summons was issued. At the time Plaintiff filed his third amended

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complaint, Rule 4(m) required that service be made within 120 days from the date the

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amended pleading was filed. See Fed. R. Civ. P. 4(m). In his declaration, Chase Alan

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Shivers, states that he served the “AMENDED CIVIL COMPLAINT VERSION 3.0.”

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See ECF No. 55-2 at 2. However, there is no evidence that Plaintiff ever served the

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summons that the Court issued. In the light most favorable to Plaintiff, there is

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evidence that Plaintiff attempted to serve the Default Defendants with a copy of the

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third amended complaint by mail,2 see ECF No. 55-2 at 2; however, a summons must

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also be served. See Fed. R. Civ. P. 4(c) (“A summons must be served with a copy of

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The Court makes no conclusions on whether Plaintiff’s Exhibit B would have been proof of
adequate service had a summons been served as well as the amended complaint. See Fed. R. Civ. P.
4(e)(2)(A)-(C) (listing the ways that someone may be properly served).
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the complaint.”); Cal. Civ. Proc. Code § 415.10 (“A summons may be served by

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personal delivery of a copy of the summons and of the complaint to the person to be

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served.”).

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The Court concludes that default judgment is inappropriate because Plaintiff has

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failed to provide sufficient evidence that he properly served the Default Defendants.

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The Court further concludes that dismissal of the Default Defendants is appropriate

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because Plaintiff has not proved that service was properly effectuated on the Default

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Defendants or otherwise shown cause why this case should not be dismissed as to the

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Default Defendants.

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III. Conclusion
IT IS HEREBY ORDERED that Plaintiff’s Motion for Default Judgment is
denied.

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IT IS FURTHER ORDERED that Defendants Sergeant Bulkowski, Sergeant

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Grubbs, Sergeant Shaw, Officer Gibson, Officer Pottin, Officer Natal, former San

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Diego Chief of Police William Lansdowne, Michael Lee Ficken; and Diana Doherty are

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dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m).

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DATED: February 3, 2016

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WILLIAM Q. HAYES
United States District Judge

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