Rodriguez v. Hemit et al

Filing 31

ORDER denying Defendants' 26 Motion to Dismiss ; granting Plaintiff's 30 Motion for Reconsideration, signed by Judge Richard A Jones. (SWT) (cc: Plaintiff via USPS)

Download PDF
HONORABLE RICHARD A. JONES 1 2 3 4 5 6 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 JERARDO RODRIGUEZ, ORDER Plaintiff, 11 12 NO. C16-0778 RAJ v. 13 SOHI HEMIT, SOON KIM, ALL UNKNOWN INVESTIGATORS FOR THE 14 POST OFFICE, ALL UNKNOWN 15 INVESTIGATORS FOR THE INSPECTOR GENERAL, ALL 16 UNKNOWN INVESTIGATORS FOR THE 17 CONSUMER AFFAIRS, 18 Defendants. 19 20 21 I. INTRODUCTION This matter comes before the Court upon Defendants’ motion to dismiss (Dkt. # 26) 22 and Plaintiff’s motion for reconsideration, extension of time and to compel (Dkt. # 30). 23 II. BACKGROUND 24 This lawsuit arises from Plaintiff’s encounters with his mail carrier. Plaintiff claims 25 that he complained to the U.S. Post Office in July 2015 about the bad attitude of Sohi Hemit, 26 Plaintiff’s mail carrier. Dkt. 1-1 (Complaint) at 1. Plaintiff avers that Hemit began throwing 27 trash in Plaintiff’s mailbox in retaliation for this complaint. Id. Plaintiff alleges that he 28 ORDER - 1 1 appealed to Soon Kim, the Post Master General, as well as to Kim’s superiors to no avail. 2 Id. at 2. Plaintiff claims that he experienced further retaliation for his insistence on an 3 investigation into the initial complaint. Id. For example, Plaintiff states that Hemit tampered 4 with his mail on one occasion and, on another occasion, stole $60.00 by slicing open three 5 letters meant for Plaintiff. Id. Plaintiff claims that the harassment has not stopped. Id. 6 On May 25, 2016, Plaintiff filed suit against Hemit, Kim, and a slew of unknown 7 defendants. Dkt. # 1. In order to properly serve the unknown defendants, Plaintiff requested 8 permission to propound early discovery. Dkt. # 22. The Court granted his request, allowing 9 Plaintiff to propound discovery no later than January 31, 2017. Dkt. # 23. On January 17, 10 2017, Plaintiff filed a motion to compel, arguing that he propounded discovery but 11 Defendants refused to comply. Dkt. # 24. Instead, Defendants answered that Plaintiff’s 12 motion for discovery was “improper and objectionable under” the Federal Rules of Civil 13 Procedure. Dkt. # 24 at 8. Defendants stated they had “no obligation to provide responses to 14 these discovery requests, and no further response, other than [this letter,] will be 15 forthcoming.” Id. The Court struck part of Plaintiff’s motion to compel for failure to 16 comply with LCR 37(a)(1) but reiterated that “Defendants shall respond to Plaintiff’s 17 discovery no later than 30 days after receipt.” Dkt. # 25. 18 The parties did not file additional briefs regarding discovery. On March 23, 2017, the 19 Court noted that the deadlines for early discovery had passed and therefore dismissed the 20 unknown defendants. Dkt. # 29. 21 Defendants now request that the Court dismiss the matter pursuant to Rule 4(m). Dkt. 22 # 26. Plaintiff moves to compel Defendants to respond to his discovery requests. Dkt. # 30. III. 23 A. Service 24 25 DISCUSSION In a suit against a federal employee in her official capacity, Rule 4(i)(3) requires a 26 plaintiff to serve both the employee and the United States. Fed. R. Civ. P. 4(i)(3). Rule 27 4(i)(1) instructs plaintiffs on how to serve the United States. 28 ORDER - 2 1 Plaintiff’s pro se status does not excuse him from abiding by applicable rules and 2 deadlines. However, in the context of Rule 4—and specifically in the context of Rule 4(i)— 3 the Ninth Circuit has recognized “a liberal and flexible construction.” Borzeka v. Heckler, 4 739 F.2d 444, 447 (9th Cir. 1984). Moreover, Rule 4 provides some leeway to a plaintiff 5 who successfully serves the employee but not the United States. In such a case, the “court 6 must allow a party a reasonable time to cure its failure.” Fed. R. Civ. P. 4(i)(4)(B). 7 In this case, Plaintiff served the named defendants but failed to serve the United 8 States. In response, Plaintiff contends that the United States is on notice because the 9 Department of Justice responded to his application for default and has authored many of the 10 briefs in this matter. Dkt. ## 17, 26. In the alternative, Plaintiff requests assistance from the 11 Court in properly serving the United States. Dkt. # 28. 12 The Court will allow Plaintiff reasonable time to cure the issue with service in this 13 matter. See Fed. R. Civ. P. 4(i)(4)(B). The Court directs the Clerk to issue service upon the 14 United States. 28 U.S.C. § 1915(d). The Clerk is directed to send by first-class mail to the 15 United States attorney for the Western District of Washington the following documents: a 16 copy of Plaintiff’s complaint and this Order, a Waiver of Service of Summons, and a return 17 envelope, postage prepaid, addressed to the Clerk’s office. The Clerk is further directed to 18 send these same documents, by registered or certified mail, to the Attorney General of the 19 United States. Fed. R. Civ. P. 4(i)(B). B. Early Discovery 20 21 On two occasions, the Court granted Plaintiff early discovery to ascertain the names 22 of the “unknown” defendants. Dkt. ## 23, 25. The Court dismissed the unknown defendants 23 after it appeared that Plaintiff did not timely amend his complaint. Dkt. # 29. However, it 24 appears that the Government did not comply with the discovery requests. Dkt. # 24. 25 The Court GRANTS Plaintiff’s motion for reconsideration to the extent that he may 26 have an extension to serve the unknown defendants. The Court reiterates what it has already 27 ordered in the past: Plaintiff may propound limited and targeted early discovery upon 28 Defendants for the sole purpose of ascertaining the identities of the unknown defendants. To ORDER - 3 1 be clear, the scope of discovery is limited to the type of request that appears in Question 3 of 2 Plaintiff’s Motion to Compel. Dkt. # 24 at 3. Such discovery must be propounded no later 3 than August 11, 2017. Defendants shall respond to Plaintiff’s discovery no later than thirty 4 (30) days after receipt of the same. If Defendants object to the discovery requests, they shall 5 provide Plaintiff with the reasons for the objections. Defendants are on notice that Plaintiff’s 6 discovery is targeted at identifying certain unknown defendants and shall keep this purpose 7 in mind when submitting their response. 8 No later than ten (10) days after Plaintiff has received the discovery responses from 9 Defendants, Plaintiff shall file an Amended Complaint naming those defendants whose 10 identities were ascertained through early discovery. If no such Amended Complaint is filed 11 by September 22, 2017, the Court will dismiss these unknown defendants without further 12 notice to the parties. IV. 13 14 CONCLUSION For the foregoing reasons, Defendants’ motion to dismiss is DENIED. Dkt. # 26. 15 Plaintiff’s motion is GRANTED. Dkt. # 30. 16 17 Dated this 1st day of August, 2017. 18 A 19 20 21 The Honorable Richard A. Jones United States District Judge 22 23 24 25 26 27 28 ORDER - 4

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?