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Paul Denham v. Aranda

June 9, 2011

PAUL DENHAM, PLAINTIFF,
v.
ARANDA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge

ORDER DENYING MOTION FOR REHEARING OF MOTION REQUESTING CDCR TO PROVIDE FULL LEGAL NAMES OF DEFENDANTS ARANDA AND BENVIN; ORDER THE USDC CLERK TO SERVE DEFENDANTS ARANDA AND BENVIN BY PUBLICATION (DOC. # 67)

On May 16, 2011, the Court denied Plaintiff's Motion For Order For CDCR To Provide Full Legal Names of Aranda and Benvin And Order the USDC Clerk To Serve Defendants Aranda and Benvin By Publication. On June 6, 2011, Plaintiff filed a Motion for Rehearing of that Motion. The Court construes the June 6, 2011 Motion to be a Motion for Reconsideration.

In the June 6, 2011 Motion, Plaintiff argues that the Court's May 16, 2011 order unreasonably applied state law and will cause him prejudice in not being able to serve Defendants Aranda and Benvin (hereafter "Defendants").

Procedural History

On July 10, 2009, Plaintiff filed a Complaint Under The Civil Rights Act, 42 U.S.C. §1983. On August 31, 2009, the Court granted Plaintiff's Motion to Proceed in forma pauperis, and directed the United States Marshal to effect service of summons and complaint on Defendants. On October 27, 2009, the summonses served on Defendants Aranda and Benvin were returned unexecuted.*fn1

On December 4, 2009, Defendants served and filed a Motion to Dismiss Plaintiff's Complaint. On May 3, 2010, this Court filed a Report and Recommendation Granting Defendants' Motion to Dismiss. On June 21, 2010, the District Judge assigned to this case adopted the Report and Recommendation and allowed Plaintiff to file a First Amended Complaint. On July 30, 2010, Plaintiff filed a First Amended Complaint.

On August 12, 2010, Defendants filed a Motion to Dismiss Plaintiff's First Amended Complaint. On December 30, 2010, this Court filed a Report and Recommendation Granting in part and Denying in part Defendants' Motion to Dismiss. On February 4, 2011, the District Judge assigned to this case adopted the Report and Recommendation.

On March 16, 2011, Plaintiff filed a Motion for Court Order for Substituted Service on the Secretary of State for Defendants Aranda and Benvin. On March 21, 2011, Plaintiff filed Motions for Leave of Court for Enlargement of Time To Complete Service on Defendants, and for a Court Order For Substituted Service on the Attorney General and/or the Secretary of State or the California Department of Corrections and/or Litigation Coordinator at Donovan State Prison.

On March 25, 2011, the Court granted in part the motions noted in the preceding paragraph. The March 25, 2011 Order directed Defendants' counsel to provide the last known addresses of Defendants Aranda and Benvin to the United States Marshal in a confidential memorandum and for the United States Marshal to serve those Defendants at their last known addresses, as contained in the confidential memorandum, with summonses and Plaintiff's First Amended Complaint. On April 28 and May 2, 2011 respectively, the summonses for Aranda and Benvin were returned unexecuted.

On May 12, 2011, Plaintiff filed a Motion to Serve Defendants By Publication. On May 16, 2011, the Court denied the Motion. Plaintiff now seeks reconsideration of that Order.

Discussion

Plaintiff argues that the Court's May 16, 2011 Order misinterpreted California law. However, Plaintiff is mistaken.

California Code of Civil Procedure § 415.50 states in pertinent part:

(a) A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in ...


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