-JPR Vance Blaine v. Lesley Klein et al, No. 2:2010cv09038 - Document 28 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER DISMISSING COMPLAINT FOR FAILURE TO SERVE by Judge Cormac J. Carney: (See document for details.) Accordingly, it is ORDERED that this action be dismissed without prejudice for failure to effect service on any of the named Defendants. (Presented by: Jean Rosenbluth, U.S. Magistrate Judge) (rla)
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1 o 2 3 FILED· SOUTHERN-fijI7lS'ION-t CLERK. u.s DISTRlcr COll"Rl 4 NOV - 4 2011 5 6 TRICT OF CALIFORNIA DEPUTY 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 VANCE BLAINE, Plaintiff, 13 v. 14 15 LESLEY KLEIN et al. , Defendants. 16 ) ) ) ) ) ) ) ) ) ) Case No. CV 10-9038-CJC (JPR) MEMORANDUM OPINION AND ORDER DISMISSING COMPLAINT FOR FAILURE TO SERVE ) 17 18 On October 27, 2011, Plaintiff Vance Blaine lodged with the 19 Court what he purported were proofs of service on the named 20 21 22 Defendants in this case, along with a motion for default judgment against each one. Counsel. He also filed a Motion for Appointment of Because Plaintiff has had numerous extensions of time 23 within which to properly serve Defendants and has repeatedly 24 failed to do so, this action 'is hereby DISMISSED and Plaintiff's 25 26 27 28 Motion for Appointment of Counsel is DENIED as moot. On November 23, 2010, Plaintiff filed a § 1983 civil rights action pro se against the Compton Police Department and numerous other defendants. He paid the $350 filing fee; his prisoner 1 trust-account statement demonstrated that he had more than $35,000 2 in that account at the time and had maintained a monthly average 3 of more than $36,000 for the prior six months. 4 2010, the previously assigned 5 original Complaint for failure to state a claim but allowed 6 Plaintiff 30 days in which to file a First Amended Complaint. 7 u.s. On December 17, Magistrate Judge dismissed the Plaintiff filed the First Amended Complaint on January 24, 8 2011. On April 15, 2011, the Court ordered Plaintiff to effect 9 service on the Defendants within 120 days and warned Plaintiff 10 that failure to do so could result in dismissal of the action. 11 On June 13, 2011, Plaintiff filed what he claimed were proofs 12 of service of the First Amended Complaint on each named Defendant. 13 On July 28, 2011, the Court issued an order finding that Plaintiff 14 had failed to properly effect service on the Defendants and 15 ordered him to do so within 30 days or face dismissal. 16 carefully delineated the service rules and explained to Plaintiff 17 what he needed to do to properly effect service. 18 The Court On August 8, 2011, Plaintiff filed a request that the u.s. 19 Marshal's Service be ordered to serve the Defendants. 20 19, 2011, the Court denied Plaintiff's request on the ground that 21 he is not indigent and therefore did not meet the requirements of 22 28 U.S.C. 23 § On August 1915 for service by the Marshal's Service. On August 24, 2011, Plaintiff sought an extension of time 24 within which to serve Defendants, which the Court granted on 25 August 26, 2011. 26 serve Defendants but warned that he must comply with Federal Rule 27 of Civil Procedure 4 in serving them. 28 The Court gave Plaintiff 60 additional days to On October 3, 2011, Plaintiff filed what he purported to be 2 1 proofs of service as to each Defendant as well as a motion for 2 default judgment for each. On October 11, the Court denied the 3 motions, explaining to Plaintiff that "none of the Defendants 4 I -i J against whom default judgment is sought were properly served 5 within the meaning of Federal Rule of Civil Procedure 4(e) or 6 California Code of Civil Procedure sections 415.10, 415.20, or 7 415.30." 8 until October 26 to properly effect service. 9 as follows: J I The Court reminded Plaintiff that he continued to have The Court also noted 10 Plaintiff has received numerous extensions of time since 11 April 2011 in which to properly serve the Defendants. 12 Because Plaintiff had more than $35,000 in his trust account 13 as of November 2010, service by the 14 appropriate. 15 failure to comply with the Court's directive that proper 16 service be effected may result in a recommendation of 17 dismissal of this lawsuit. 18 Plaintiff's October 26 submissions purport to show service on 19 each Defendant through process server William Hackney, who alleges 20 in a sworn affidavit that he placed "a copy of the Summons and 21 Complaint" in an "envelope with first class postage thereon fully 22 paid in the United States mail at California Medical Facility on 23 September 2, 2011."1 u.s. Marshals is not Plaintiff is hereby advised that his continuing 24 Federal Rule of Civil Procedure 4(e) (1) allows service of 25 summonses in accordance with state law (Rule 4 does not itself 26 27 28 1Confusingly, Plaintiff's October 26 lodgings relating to service were apparently signed on the same day - September 2 - as the October 3 filings. 3 1 permit service by mail). California Rule of Civil Procedure 2 415.30 allows service by mail, but subsection (c) specifically 3 states that service is not complete until "a written 4 acknowledgment of receipt of summons is executed, if such 5 acknowledgment thereafter is returned to sender." 6 not submitted to the court any proof that any of the Defendants 7 ever received or acknowledged the First Amended Complaint or 8 Summons. 9 v. Ground, 39 F.3d 231, 234 (9th Cir. 1994) Plaintiff has Thus, proper service has not been effected. See Barlow (affirming dismissal 10 of action because plaintiff had no proof service was ever 11 completed under Rule 415.30) . 12 "If a defendant is not served within 120 days after the 13 complaint is filed, the court - on motion or on its own after 14 notice to the plaintiff - must dismiss the action without 15 prejudice against that defendant or order that' service be made 16 within a specified time." 17 Barnette, 923 F.2d 754, 757 (9th Cir. 1991) 18 of complaint for failure to timely serve summons and complaint) . 19 Fed. R. Civ. P. 4(m); see Boudette v. (affirming dismissal Here, Plaintiff has not effected service on any of the named 20 Defendants. While the Court is mindful that Plaintiff is 21 proceeding pro se, he nonetheless has a responsibility to follow 22 the Rules of civil Procedure and this Court's orders regarding 23 service. 24 he presumably had access to various resources to properly effect 25 service. Moreover, as Plaintiff appears to be far from indigent,2 26 27 28 2For this reason and others, Plaintiff's request for the appointment of counsel is inappropriate, and the Court denies it as moot in light of its Order dismissing this action. 4 1 Accordingly, it is ORDERED that this action be dismissed 2 without prejudice for failure to effect service on any of the 3 named Defendants. 4 5 Dated: #"v~~ 'I , 2011 6 7 8 9 10 Presented By: 11 12 13 14 Rosenbluth Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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