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