McCormack v. City and County of Honolulu et al
Filing
155
ORDER (1) Granting Defendants Cyrel Lozano And Preston Pacheco's Motion To Dismiss And (2) Affirming Magistrate Judge Chang's Order Denying McCormack An Enlargement Of Time To File A Motion Amend Complaint re 85 , 148 . Signed by JUDGE SU SAN OKI MOLLWAY on 12/30/11. "The Complaint is DISMISSED without prejudice as to Cyrel Lozano and Preston Pacheco. Magistrate Judge Chang's order denying McCormack's motion to enlarge the time to file a motion for a second amended co mplaint is AFFIRMED." (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL S. McCORMACK,
)
)
)
Plaintiff,
)
)
vs.
)
CITY AND COUNTY OF HONOLULU, )
)
ANDY LAZANO,
MR. PACHECO,
)
)
JOHN DOES 1-10,
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 10-00293 SOM/KSC
ORDER (1) GRANTING DEFENDANTS
CYREL LOZANO AND PRESTON
PACHECO’S MOTION TO DISMISS
AND (2) AFFIRMING MAGISTRATE
JUDGE CHANG’S ORDER DENYING
MCCORMACK AN ENLARGEMENT OF
TIME TO FILE A MOTION TO
AMEND COMPLAINT
ORDER (1) GRANTING DEFENDANTS CYREL LOZANO AND
PRESTON PACHECO’S MOTION TO DISMISS AND (2) AFFIRMING
MAGISTRATE JUDGE CHANG’S ORDER DENYING MCCORMACK
AN ENLARGEMENT OF TIME TO FILE A MOTION TO AMEND COMPLAINT
I.
INTRODUCTION.
On May 18, 2010, Plaintiff Michael S. McCormack filed
this action against the City and County of Honolulu (“City”) and
two Honolulu Police Department police officers.
McCormack
alleges that the two police officers used excessive force against
him in violation of his constitutional rights and state law.
McCormack’s Complaint names the officers as “Andy Lazano” and
“Mr. Pacheco,” but the officers McCormack intended to sue are
Cyrel Lozano (“Lozano”) and Preston Pacheco (“Pacheco”).
McCormack has still not served either Lozano or Pacheco.
Lozano
and Pacheco now move to dismiss the Complaint for insufficient
service of process, and for failure to prosecute and comply with
the Federal Rules of Civil Procedure.
The court grants the
motion and dismisses the Complaint against Lozano and Pacheco
without prejudice.
The court also here affirms Magistrate Judge
Kevin Chang’s order denying McCormack’s request for additional
time to file a motion to amend the Complaint.
II.
BACKGROUND.
A.
Factual Background.
According to the Complaint, on May 18, 2008, McCormack
boarded a public bus in Kapolei.
See Compl. ¶ 9, ECF No. 1.
McCormack is epileptic; he wears a cast on his lower leg and
ankle and uses a cane for support.
See id. ¶ 11.
On the day of
the incident, McCormack showed his disability pass to the bus
driver and boarded the bus.
See id. ¶ 9.
McCormack alleges
that, while sitting inside the bus, he noticed a woman outside
talking to police officers and gesturing toward the bus.
¶ 10.
See id.
The police were allegedly investigating a purse-snatching.
See Def. Mot. Partial Dismissal ¶ 14, ECF No. 11.
While the
Complaint is unclear, it appears McCormack is alleging that the
woman described the culprit as having worn a black leather
jacket.
See Compl. ¶ 12.
Three police officers, including
Lozano and Pacheco, allegedly boarded the bus and approached
McCormack.
McCormack says he was one of at least three men on
the bus wearing a black leather jacket.
See id. ¶¶ 4, 12.
Lozano allegedly grabbed McCormack and told him he was under
arrest.
See id. ¶ 12.
McCormack alleges that Lozano “yank[ed]
2
Plaintiff out of the seat and twist[ed] him around and put
handcuffs on [him].”
See id.
McCormack allegedly suffered a
seizure as a result of the officers’ physical abuse and threat of
arrest.
See id. ¶ 13.
McCormack alleges that the police officers who
approached him failed to question him first.
See id. ¶ 14.
They
also allegedly failed to inform him what he was suspected of
having done and used excessive force against him.
See id.
McCormack claims that Lozano and Pacheco lacked probable cause to
arrest him but used their status as police officers to threaten,
assault, and intimidate him.
See id. ¶¶ 15, 16.
After McCormack
went into an epileptic seizure, Lozano and Pacheco allegedly
realized that they had falsely accused McCormack and did not
arrest him.
See id. ¶ 17.
McCormack claims that his health was
jeopardized by the officers’ rough treatment and false accusation
of theft.
See id.
B.
Procedural Background.
McCormack filed the Complaint incorrectly naming Andy
Lazano and incompletely naming Mr. Pacheco on May, 18, 2010.
No. 1.
ECF
McCormack did not serve Lozano and Pacheco within 120
days as required by Rule 4(m) of the Federal Rules of Civil
Procedure.
The lack of service was discussed, even before the
120 days had passed, at a scheduling conference before Magistrate
Judge Chang on August 23, 2010.
ECF No. 9.
3
On September 22,
2010, McCormack moved for an additional sixty days to serve
Lozano and Pacheco.
Pl. McCormack’s Ex Parte Mot. for an
Enlargement of Time to Serve Defs. Andy Lazano and Officer
Pacheco, ECF No. 13.
McCormack requested the additional time to
conduct discovery and obtain photographs of Lozano and Pacheco.
Id. at 1.
Magistrate Judge Chang granted the motion, finding
good cause for the failure to timely serve them.
ECF. No. 16.
McCormack did not serve Lozano and Pacheco within the allotted
sixty days.
A Rule 16 scheduling conference was held on September
27, 2010.
ECF No. 18.
Magistrate Judge Chang issued the
Scheduling Order the same day, setting forth various deadlines,
including a deadline of April 15, 2011, for motions to amend the
pleadings, and a deadline of June 15, 2011, for dispositive
motions.
Rule 16 Scheduling Order (“Scheduling Order”), Sept.
27, 2010, ECF No. 18.
On January 25, 2011, this court partially dismissed the
Complaint against the City.
See Order Partially Granting and
Partially Denying Def. City and County’s Mot. to Dismiss, Jan.
25, 2011, ECF No. 31 (“Dismissal Order”).
In that order, the
court gave McCormack until February 15, 2011, to file an amended
complaint.
Id. at 16.
McCormack did not file an amended
complaint by that date.
4
Two months later, on April 14, 2011, McCormack moved to
amend the Complaint to “more definitively specif[y] the names of
the Defendants and conform[] the pleadings to the Court’s prior
order.”
Mot. to Amend Compl. 1, ECF No. 43.
Chang denied the motion.
Magistrate Judge
Order Denying Pls. Mot. to Amend
Compl., May 20, 2011, ECF No. 53.
Although Magistrate Judge
Chang recognized that courts are to give leave freely when
justice requires, he determined that the proposed amended
complaint failed to comply with this court’s Dismissal Order
because most of the allegations were “identical” to those
identified as deficient in the original Complaint.
Id. at 2, 5.
However, Magistrate Judge Chang gave McCormack “one more
opportunity to file a motion to amend” the Complaint.
Id. at 9.
McCormack was instructed to file a motion to amend by June 3,
2011, and told that any motion to amend filed after that date
would be subject to the “good cause” requirement under Rule 16(b)
of the Federal Rules of Civil Procedure.1
Id. at 9.
McCormack
did not file a motion to amend by the new deadline.
The City moved for summary judgment, and the court
granted partial summary judgment on July 26, 2011.
Order
Granting in Part, Denying in Part Defendant City and County’s
Mot. for Summary Judgment, July 26, 2011, ECF No. 83.
1
Rule 16(b)(4) states: “ A [Rule 16] schedule may be
modified only for good cause and with the judge's consent.”
5
On August 24, 2011, Lozano and Pacheco brought the
present motion to dismiss.2
On September 2, 2011, McCormack
again moved to amend the Complaint to correctly name the
Defendants and to comply with this court’s Dismissal Order.
Mot.
for Second Amended Compl. to Amend Named Defs., ECF No. 94.
On
September 8, 2011, McCormack moved for an extension of the
deadline for motions to amend the pleadings, as set by the Rule
16 Scheduling Order, to allow the court to consider that motion.
Mot. to Allow an Enlargement of Time for Complainant to File a
Mot. to Amend Compl., ECF No. 99.
Magistrate Judge Chang denied
the motion on November 23, 2011, finding no good cause to amend
the Rule 16 Scheduling Order because the court could not say that
McCormack had “exercised due diligence in ascertaining the
correct names of the police officers involved in the incident”
and as McCormack had not “taken appropriate steps in complying
with Court orders in this case regarding naming and serving the
individual defendants.”
Order Denying Pl.’s Mot. to Allow an
Enlargement of Time for [Pl.] to File a Mot. to Amend Compl.
Filed on September 8, 2011, at 2, ECF No. 145.
On December 4,
2011, McCormack appealed from Magistrate Judge Chang’s order.
ECF No. 148.
2
As the motion was filed after the deadline to file
dispositive motions had passed, Lozano and Pacheco had to obtain
an extension of that deadline, which was granted after the motion
to dismiss had been filed. ECF Nos. 87, 95.
6
In the present motion, Lozano and Pacheco seek
dismissal of the Complaint given the lack of service of the
Complaint.
III.
The court grants the motion.
RULE 12(b)(5) STANDARD.
Rule 12(b)(5) of Federal Rules of Civil Procedure
allows for dismissal based on insufficient service of process.
Federal courts cannot exercise personal jurisdiction over a
defendant without proper service of process.
Ltd. v. Wolff & Co., 484 U.S. 97, 104 (1987).
Omni Capital Int'l,
“‘[S]ervice of
process is the mechanism by which the court [actually] acquires”
the power to enforce a judgment against the defendant's person or
property.”
Sec. Exch. Comm’n v. Ross, 504 F.3d 1130, 1138 (9th
Cir. 2007) (quoting United States v. 2,164 Watches, More or Less
Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 771
(9th Cir. 2004) (modification in original)).
To determine whether service of process was proper, a
court looks to the requirements of Rule 4 of the Federal Rules of
Civil Procedure.
5B Charles A. Wright & Arthur R. Miller,
Federal Practice & Procedure § 1353 (Civ. 3d ed. current through
2009); Gidding v. Anderson, No. C-07-04755 JSW, 2008 WL 4065814,
at *1 (N.D. Cal. Aug. 27, 2008).
While Rule 4 is a flexible rule
that should be liberally construed to uphold service so long as a
party receives sufficient notice of the complaint, United Food &
Commercial Workers Union, Local 197 v. Alpha Beta Co., 736 F.2d
7
1371, 1382 (9th Cir. 1984), “neither actual notice nor simply
naming the defendant in the complaint will provide personal
jurisdiction” absent substantial compliance with its
requirements.
Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986).
The burden is on the party claiming proper service to
establish valid service.
Cranford v. United States, 359 F. Supp.
2d 981, 984 (E.D. Cal. 2005) (internal citations omitted);
Federal Practice & Procedure § 1353 (“The great weight of the
case law is to the effect that the party on whose behalf service
has been made has the burden of establishing its validity.”).
A
court may weigh the evidence and resolve disputed issues of fact
in accordance with Rule 12(d).
Taniguchi v. Native Hawaiian
Office(s) of the Attorney General, Civil No. 09-00117 SOM-KSC,
2009 WL 1404731, at *2 (D. Haw. May 15, 2009) (citing Federal
Practice & Procedure § 1353).
IV.
ANALYSIS.
It is undisputed that McCormack failed to serve Lozano
and Pacheco, as required by Rule 4.
Lozano and Pacheco thus
argue that dismissal of the Complaint as to them is proper under
Rule 4(m):
If a defendant is not served within 120 days
after the complaint is filed, the court--on
motion or on its own after notice to the
plaintiff--must dismiss the action without
prejudice against that defendant or order
that service be made within a specified time.
But if the plaintiff shows good cause for the
failure, the court must extend the time for
8
service for an appropriate period. This
subdivision (m) does not apply to service in
a foreign country under Rule 4(f) or 4(j)(1).
Fed. R. Civ. P. 4(m).
“Rule 4(m) requires a two-step analysis in deciding
whether or not to extend the prescribed time period for the
service of a complaint.”
In re Sheehan, 253 F.3d 507, 512 (9th
Cir. 2001) (citations omitted).
“First, upon a showing of good
cause for the defective service, the court must extend the time
period.
Second, if there is no good cause, the court has the
discretion to dismiss without prejudice or to extend the time
period.”
cause.
Id.
The plaintiff bears the burden of showing good
Gill v. Waikiki Lanai, Inc., Civil No. 10-00557 LEK-RLP,
2011 WL 3648772, at *7, (D. Haw. Aug. 18, 2011) (citing Rule
4(m)).
A.
McCormack Does Not Show Good Cause for His Failure
to Serve Lozano and Pacheco.
Lozano and Pacheco argue that McCormack does not
establish good cause for his failure to serve them, and that the
court should exercise its discretion to dismiss the Complaint
against them.
“Good cause” has been defined by the Ninth Circuit
as, “at a minimum,” “excusable neglect.”
In re Sheehan, 253 F.3d
at 512 (quoting Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir.
1991)).
In the context of Bankruptcy Rule 9006(b), which allows
a court to extend the time for service upon a showing of
“excusable neglect,” the Supreme Court has held that
9
“inadvertence, ignorance of the rules, or mistakes construing the
rules do not usually constitute ‘excusable’ neglect.”
Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship., 507 U.S. 380,
392 (1993).
In addition to showing good cause, a plaintiff may
be required to show the following factors: “(a) the party to be
served personally received actual notice of the lawsuit; (b) the
defendant would suffer no prejudice; and (c) plaintiff would be
severely prejudiced if his complaint were dismissed.”
Boudette
v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991) (citing Hart v.
United States, 817 F.2d 78, 80–81 (9th Cir. 1987)) (as cited
in In re Sheehan, 253 F.3d at 512).
In Boudette, the plaintiff, proceeding in forma
pauperis, did not show good cause for his failure to timely serve
the defendants when his “sole excuse” was that he did not receive
notice that the complaint had been filed because of an error by
either the court clerk or the postal service.
923 F.2d at 757.
The plaintiff claimed that he would have timely served the
defendants if he had received notice of the filing date, which
the district court clerk assured him would arrive by mail.
at 756.
Id.
Because he relied on the United States to send him
notice, which did not arrive allegedly because of an error by the
court clerk or the postal service, the plaintiff argued that his
neglect was excusable.
Id.
The Ninth Circuit disagreed, finding
that his reliance on the United States was unreasonable in light
10
of an earlier order in which the district court informed the
plaintiff that he could have the United States marshal serve the
complaint rather than make his own arrangements and informed the
plaintiff of the 120-day service requirement under Rule 4.
Id.
McCormack similarly fails to show good cause for
failing to serve Lozano and Pacheco, as his neglect was not
excusable.
After filing the Complaint on May 18, 2010, McCormack
had until November 15, 2010, to serve Lozano and Pacheco.
Lozano
and Pacheco allege that the City provided McCormack with their
names in October.
Although he does not provide a date, McCormack
acknowledges that he learned Lozano and Pacheco’s names after
reviewing information received from the City during discovery.
McCormack argues that he was unable to identify Lozano
and Pacheco until he received their photographs from the City on
March 28, 2011.
However, he does not establish why he could not
at least serve them upon learning their names in October 2011,
particularly because he knew their place of employment.
Even if
McCormack did need the photographs to effect service, he did not
request additional time for service and offers no explanation for
his failure to do so.
Moreover, McCormack did not serve Lozano and Pacheco
even after receiving the photographs on March 28, 2011.
McCormack argues that he was not able to serve Lozano and Pacheco
because he was prohibited from amending the Complaint to
11
correctly name them.
This argument is unpersuasive.
At the
hearing on this motion, McCormack’s counsel adamantly maintained
that, even after learning Lozano and Pacheco’s names and
receiving their photographs, he could not serve them until he
amended the Complaint.
He asserted that his process server could
not serve Lozano and Pacheco unless the Complaint stated their
exact names because police personnel would not call officers to
the reception area unless a document bore their exact names.
The
court questioned counsel closely with respect to this assertion.
Noting that numerous complaints in this court have been served on
defendants despite errors in the defendants’ names, the court
asked why a process server could not simply orally provide the
correct names to the reception personnel.
Notably, McCormack had
not raised this circumstance in his written opposition to the
present motion.
Because counsel’s statement did not comport with
this court’s experience, the court instructed McCormack to file
within one week (by December 27, 2011) a declaration from
counsel’s process server detailing the impossibility of serving
the Complaint even when the process server could at least orally
provide the correct names of the officers.
file the declaration.
McCormack did not
Absent the requested declaration, the
court does not assume that it was impossible for McCormack to
serve Lozano and Pacheco without a complaint containing their
12
exact names.3
Even assuming that McCormack was somehow precluded
from serving Lozano and Pacheco until he amended the Complaint,
McCormack still does not establish good cause.
McCormack has
been given numerous opportunities to amend the Complaint to
properly name Lozano and Pacheco.
That he did not do so is
inexplicable, particularly when he received the color photos of
the officers on March 28, 2011, and Magistrate Judge Chang had
given him until June 3, 2011, to amend the complaint.
The court
thus finds that McCormack has not shown good cause for his
failure to serve Lozano and Pacheco.4
B.
Dismissal is Warranted.
As there is no good cause for McCormack’s failure to
serve, the court exercises its discretion under Rule 4(m) and
dismisses the Complaint as to Lozano and Pacheco without
prejudice.
The court is not persuaded by McCormack’s explanation
that he needed to amend the Complaint to correctly name the
3
The amended pleading McCormack wants to file misspells
Cyrel Lozano’s name as Cyril Lazano.
4
McCormack argues that he would be “extremely” prejudiced
if the court dismisses the Complaint, that any prejudice to
Defendants could be cured by continuing the trial, and that
Lozano and Pacheco have actual knowledge of the Complaint. Under
Boudette, these arguments are irrelevant absent the threshold
showing of excusable neglect. See 923 F.2d at 755 n. 1 (noting
that the plaintiff’s argument that the defendants had actual
knowledge of the lawsuit was only relevant if he could show
excusable neglect).
13
officers before serving them.
McCormack’s repeated disregard of
the numerous opportunities he was afforded to cure the
Complaint’s deficiencies undermines his explanation that the
amendment was essential.
V.
MCCORMACK’S APPEAL OF MAGISTRATE JUDGE CHANG’S ORDER.
McCormack appeals from Magistrate Judge Chang’s Order
Denying Plaintiff's Motion To Allow An Enlargement of Time To
File Motion To Amend Complaint, ECF No. 148.
McCormack’s appeal
papers say he sought leave to file an amended complaint “to amend
named defendants.”
present order.
Those individuals are dismissed in the
While their names may still be relevant to
remaining claims against the City, any errors in their names in
that context are immaterial.
Magistrate Judge Chang’s order was
well reasoned and entirely justified by the procedural history of
this case.
Moreover, the court ordered McCormack to submit, by
December 27, 2011, “a statement as to what, if any, reason there
would be for the court to address his pending appeal . . .,
assuming the court granted the motion to dismiss.”
ECF No. 154.
The court informed McCormack that it intended to include in this
order a statement concerning the pending appeal, and that, if the
motion to dismiss was granted, such a statement might be that the
appeal was rendered moot or was denied in light of the dismissal.
McCormack did not submit the requested statement.
affirms Magistrate Judge Chang.
14
The court now
As an additional ground for affirming the Magistrate
Judge, this court relies on McCormack’s failure to comply with
Local Rule 74.1, which requires an appealing party to file “a
written statement of appeal that shall specifically designate the
portions of the order appealed from . . . and the basis for such
appeal.”
McCormack does not specifically designate any portion
of Magistrate Judge Chang’s order.
VI.
CONCLUSION.
The Complaint is DISMISSED without prejudice as to
Cyrel Lozano and Preston Pacheco.
Magistrate Judge Chang’s order
denying McCormack’s motion to enlarge the time to file a motion
for a second amended complaint is AFFIRMED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 30, 2011
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
McCormack v. City & County of Honolulu, Civ. No. 10-00293 SOM/KSC; ORDER (1)
GRANTING DEFENDANTS CYREL LOZANO AND PRESTON PACHECO’S MOTION TO DISMISS AND
(2) AFFIRMING MAGISTRATE JUDGE CHANG’S ORDER DENYING MCCORMACK AN ENLARGEMENT
OF TIME TO FILE A MOTION TO AMEND COMPLAINT.
15
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