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Chanzie Kristina Cox and Vladimir Martynov v. County of Yuba

February 10, 2011


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Through the present action, Plaintiffs Kristina Cox and Vladimir Martynov ("Plaintiffs") seek redress for various federal and state civil rights violations, along with common law claims for assault, battery, and intentional infliction of emotional distress, as a result of injuries they claimed to have received following a high-speed automobile chase on July 16, 2008. Defendants include the counties of Yuba, Sutter and Sacramento, as well as the cities of Sacramento, Marysville, and Yuba City.

After naming those governmental entities in their initial complaint, Plaintiffs proceeded to add, by way of an amended complaint, various individually named law enforcement officers who played some role in the subject incident. Three of those individual Defendants were never served, which prompted their employer, the City of Sacramento, to file its Motion to Dismiss for failure to prosecute under Federal Rule of Civil Procedure 41(b),*fn1 and for failure to effectuate service under Rule 4(m). (ECF No. 33). This caused Plaintiffs to immediately effectuate service on the involved Sacramento City Police Officers, Defendants, Erin Peterson, Nick Tavelli and David Bell. The City of Sacramento, together with Officers Peterson, Tavelli and Bell, then proceeded to file a second Motion to Dismiss (ECF No. 37) that included additional arguments that Plaintiffs' service violated the terms of the Court's Pretrial Scheduling Order and further, with respect to Defendant Bell, was effectuated without a properly issued summons. Plaintiffs, in turn, filed their own Motion (ECF No. 39) seeking both an extension within which to properly serve Peterson, Tavelli, and Bell, as well as a request for issuance of summons as to Bell. All three Motions are presently before the Court for adjudication.*fn2


In July of 2008 Plaintiffs were involved in a high speed vehicular pursuit that included law enforcement officers from throughout the greater Sacramento area. Plaintiffs were detained and arrested after being finally forced to stop through use of a tack strip. In July of 2009, Plaintiffs filed a complaint asserting both federal and state law claims as a result of the incident against the counties of Yuba, Sutter and Sacramento. As indicated above, the cities of Marysville, Sacramento and Yuba City were also named as Defendants, along with various unnamed individuals. Plaintiffs' initial complaint only named the aforementioned governmental entities. All Defendants except the City of Sacramento submitted answers to the Complaint in August of 2009.

Plaintiffs thereafter obtained leave of court to add six additional individual Defendants. They subsequently filed their First Amended Complaint ("FAC") on December 2, 2009. The newly named Defendants included Mathew Tallman, Lindy Culp, David Leon, Jerry Parker, Erin Peterson, and Nick Tavelli. Thereafter, on December 4, 2009, a Joint Status Report was submitted in which Plaintiffs' counsel indicated that three of the individual Defendants had not yet been served. Summonses were issued for all six named individual Defendants within days of this report. The City of Sacramento, County of Sacramento, Mathew Tallman, Lindy Culp, and David Leon all subsequently filed answers to the FAC.

The Joint Status Report also expressed Plaintiffs intent to join two more individuals, David Bell and Michael Van Velzer, as individual Defendants. Neither Van Velzer nor Bell were added, however, to the pleadings until an amendment to the FAC was submitted in early February of 2010.

The Court issued its Pretrial Scheduling Order ("PTSO") on February 3, 2010, two days before Plaintiffs issued the aforementioned amendment adding Bell, a Sacramento Police Officer, and Van Velzer, a Yuba County Deputy Sheriff, as Defendants. The PTSO specified that all named Defendants had been served and that no further service would be permitted without leave of court, good cause having been shown. The PTSO further provided that no joinder of parties or amendments to pleadings would be permitted unless the same showing was made.

In October of 2010, Plaintiffs' counsel served Defendants Peterson, Tavelli and Bell with various discovery requests by way of mail to the Sacramento City Attorney's Office. According to Plaintiffs' counsel, he mistakenly believed that the City of Sacramento Attorney's Office was representing all three individuals and did not realize they in fact had never been properly served. The City Attorney notified Plaintiffs' counsel of that shortcoming by way of letter dated November 12, 2010. Plaintiffs' counsel then immediately served Defendants Peterson, Tavelli and Bell through the City Police Liaison Office on November 16, 2010.

On November 15, 2010, one day before that service was effectuated, the City of Sacramento submitted its Motion to Dismiss Defendants Peterson, Tavelli and Bell for lack of prosecution. As indicated above, that Motion was later supplemented by a second Motion to Dismiss alleging both failure to obtain leave of court as to all three Defendants and lack of sufficient process regarding Defendant Bell, since a summons naming Bell was never issued by the Court. In response, Plaintiffs filed their Opposition along with their motion requesting extension for proper service on Defendants Peterson, Tavelli and Bell, as well as their request for issuance of a summons naming Defendant Bell.


A. Failure To Prosecute

If the plaintiff fails to prosecute and/or comply with applicable rules and court orders, a defendant may move to dismiss the action or any claim against it. Fed. R. Civ. P. 41(b). Dismissal with prejudice for lack of prosecution is a severe sanction, however, and should only be used in extreme circumstances where plaintiff's conduct is either egregious or willfully dilatory. De Malherbe v. Int'l Union of Elevator Constructors, 438 F. Supp. 1121, 1127 (9th Cir. 1977). Dismissal with prejudice is unwarranted in instances of more benign neglect, and in the absence of a showing of specific prejudice. Id. Dismissal without prejudice may also be inappropriate if such ...

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