United States District Court, N.D. California
December 21, 2005.
COY PHELPS, Plaintiff,
ANTI-DEFAMATION LEAGUE OF B'NAI B'RITH; et al., Defendants.
The opinion of the court was delivered by: MARILYN PATEL, District Judge
ORDER OF DISMISSAL
In an October 24, 2005, Order, the court granted several
defendants' motions to dismiss and dismissed the action against
those defendants. The court noted that there were four other
defendants who had not been served with process and/or had not
entered an appearance in the action. Specifically, service of
process apparently had not been accomplished as to defendants Roy
Bullock, Tom Gerard and Don Smith. A fourth defendant, the State
of Israel, had not entered an appearance although the court had
not determined whether that defendant had been properly served
The court notified plaintiff in the October 24, 2005 Order that
it intended to decide with regard to the four remaining
defendants whether the action would be dismissed under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim
upon which relief may be granted. Oct 24, 2005 Order, p. 24. The
court explained that: it appears that the court's rulings in this order
[apply] with equal force to the claims asserted
against the four non-appearing defendants.
Specifically, (a) claims concerning the arrest,
prosecution and trial of Phelps appear to be barred
by Heck, the collateral estoppel doctrine and the
statute of limitations and (b) claims concerning
information obtained in 1992 or 1993 from the raid on
the ADL offices and defendants' residences appear to
be barred by Heck and the collateral estoppel
doctrine insofar as they allegedly show Phelps'
innocence of the bombing and by the statute of
Oct. 24, 2005 Order, p. 24. The court also notified plaintiff
that it intended to decide with regard to defendants Bullock,
Gerard and Smith whether the complaint would be dismissed under
Federal Rule of Civil Procedure 4(m) for failure to timely serve
process on these defendants. Oct. 24, 2005 Order, p. 25. The
court gave Phelps an opportunity to show cause why the court
should not take such actions: "No later than December 2, 2005,
plaintiff must file and serve any opposition/response to the
court's intent to sua sponte determine whether the first amended
complaint states a claim for relief against any of the
non-appearing defendants. And no later than December 2, 2005,
plaintiff must file and serve his response regarding service of
process on defendants Gerard, Smith and Bullock." Id. at 25-26.
Plaintiff filed a response to the order on November 14, 2005,
only addressing one of the court's two concerns. That is, he
described his unsuccessful efforts to serve defendants Bullock,
Gerard and Smith, but did not address the court's notice that it
intended to dismiss the action under Rule 12(b)(6).
Having considered the matter and the plaintiff's response, the
court now dismisses the action as against the remaining four
defendants because the first amended complaint fails to state a
claim upon which relief may be granted. The dismissal is without
leave to amend. There is no reason for this action to remain open
indefinitely for Phelps to attempt to cure serve process service
of process problems that may never be resolved in light of the
fact that the claims against those unserved defendants have the
same problems i.e., they are barred by Heck v. Humphrey,
512 U.S. 477 (1994), the collateral estoppel doctrine, and the
statute of limitations that led the court to dismiss the action
against other defendants. Because the court has dismissed the
first amended complaint for failure to state a claim upon which
relief may be granted, the court need not decide whether
plaintiff has shown cause for his failure to accomplish service of process on defendants Gerard, Bullock and
The action is now terminated as to all defendants. Judgment
will be entered against plaintiff and in defendants' favor. The
clerk shall close the file.
IT IS SO ORDERED.
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