Davis v. San Diego District Attorney et al

Filing 43

ORDER Denying 40 Request for U.S. Marshal Service. Signed by Judge Janis L. Sammartino on 8/4/2017. (All non-registered users served via U.S. Mail Service)(dxj)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GAVIN B. DAVIS, Case No.: 17-CV-654 JLS (BGS) Plaintiff, 12 13 14 16 SAN DIEGO DISTRICT ATTORNEY; MR. LEONARD TRINH; MR. DAVID T. GRAPILON; MS. BONNIE DUMANIS; MR. JOH GREGORY UNRUH, 17 ORDER DENYING REQUEST FOR U.S. MARSHAL SERVICE v. Defendants. 15 (ECF No. 40) 18 19 Presently before the Court is Plaintiff Gavin B. Davis’s “Request for U.S. Marshall 20 [sic] for Service on Defendnat [sic] Greg for Cause.” (“Service Mot.,” ECF No. 40.) 21 Plaintiff moves the Court to provide U.S. marshal service on Defendant John Gregory 22 Unruh. (Id.) 23 Rule 4 of the Federal Rules of Civil Procedures provides that “[t]he plaintiff is 24 responsible for having the summons and complaint served within the time allowed by Rule 25 4(m).” Fed. R. Civ. P. 4(c)(1). Subsection (c)(3) of Rule 4 allows the court to order that 26 service be made by a United States marshal or deputy marshal at the plaintiff’s request. 27 Fed. R. Civ. P. 4(c)(3). “The court must so order if the plaintiff is authorized to proceed in 28 forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.” Id. 1 17-CV-654 JLS (BGS) 1 Plaintiff is neither proceeding in forma pauperis nor a seaman under the applicable 2 statute. However, the plain language of Rule 4(c)(3) leaves district courts with discretion 3 to order service by a marshal in other circumstances. See, e.g., Holcomb v. Cal. Bd. of 4 Psychology, No. 215CV02154KJMCKD, 2015 WL 6951731, at *1 (E.D. Cal. Nov. 10, 5 2015); see also Ovalle v. Fresno Bee Newspapers, No. CV08-6751 PSG (SHX), 2009 WL 6 398094, at *1 (C.D. Cal. Feb. 13, 2009) (noting that the Advisory Committee Notes provide 7 examples where the Court should exercise its discretion in the plaintiff’s favor, such as 8 “where a law enforcement presence appears to be necessary or advisable to keep the peace, 9 or in actions brought by the United States”). 10 Plaintiff argues that he has unsuccessfully tried to serve Defendant Unruh on twelve 11 previous occasions. (Service Mot. 2.) But Plaintiff provides no evidence that law 12 enforcement presence appears to be necessary, or that other unusual circumstances exist 13 for the Court to exercise its discretion to provide marshal service. Nor has Plaintiff 14 demonstrated that he has attempted to serve Defendant Unruh in this case; his evidence of 15 prior service attempts concern unrelated cases. (Id. at 3–9.) Even if Plaintiff’s evidence 16 were relevant to this case, such evidence simply demonstrates that he has failed to properly 17 serve Defendant Unruh. However, “[a]s one court has noted, ‘the history and purpose of 18 the Rule does not favor Plaintiff’s request in such a case.’” Vahidallah v. Chase Bank, No. 19 13CV590-MMA BLM, 2013 WL 3777181, at *1 (S.D. Cal. July 16, 2013) (quoting 20 Peabody v. United States, 2006 WL 1407356 (D. Ariz. Apr. 18, 2006)). “And while the 21 Court is bound to afford Plaintiff more latitude than litigants represented by counsel to 22 correct defects in service of process and pleadings, it is not obligated to impose the duty of 23 service of process on the USMS because a pro se litigant has failed to successfully serve 24 his complaint due to ignorance or misunderstanding of the rules regulating service.” Id. 25 /// 26 /// 27 /// 28 /// 2 17-CV-654 JLS (BGS) 1 (internal quotation marks and citation omitted). Accordingly, the Court DENIES 2 Plaintiff’s request for service under Rule 4(c)(3). 3 IT IS SO ORDERED. 4 5 Dated: August 4, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 17-CV-654 JLS (BGS)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?