UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
June 9, 2011
PAUL DENHAM, PLAINTIFF,
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").
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.
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 another manner specified in this article... (emphasis added)
In order for Plaintiff to invoke California Code of Civil Procedure §415.50, he must show that he has exercised reasonable diligence to locate the person whom he wishes to serve, in order to give that person notice of the action before resorting to the notice afforded by publication. Donel v. Badalian, 87 Cal. App. 3d 327, 332 (1978).
When notice is a person's due, process which a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness... of any chosen method may be defended on the ground that it is itself reasonably certain to inform those affected, or where conditions do not reasonably permit such notice, the that form chosen is not substantially less likely to bring home notice than other of feasible and customary substitutes.
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950)(citations omitted)(emphasis added).
"When substituted or constructive service is attempted, strict compliance with the letter and spirit of the statutes is required." Kott v. Superior Court, 45 Cal. App. 4th 1126, 1137 (1996)[citing Olvera v. Olvera, 232 Cal. App. 3d 32, 41 (1991)].
"Reasonable diligence" in attempting to locate a party to be served denotes a thorough, systematic investigation and inquiry in good faith by the party... a number of honest attempts to learn (a) defendant's whereabouts or his address by inquiry of relatives, friends and acquaintances, or of his employer, and by investigation of appropriate city and telephone directories, the voters' register, and the real and personal property index... near the defendant's last known address, are generally sufficient. These are likely sources of information, and consequently must be searched before resorting to service by publication.
Kott, 45 Cal. App. 4th at 1137. (emphasis added).
A pro se Plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint. Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) abrogated on other grounds by Sandin v. Conner,515 U.S. 472 (1995); Moody v. Finander, 2010 WL 2354586 at *3 (S.D. Cal. 2010); McKenzie v. Hernandez, 2010 WL 685005 (S.D. Cal. 2010). However, a pro se Plaintiff proceeding in forma pauperis " 'may not remain silent and do nothing to effectuate service (on a defendant)', rather, '(a)t a minimum, (he) should request service upon the... defendant and attempt to remedy any apparent defects of which (he) has knowledge.'" Moore v. Lacy, 2010 WL 5644658 at *7 (S.D. Cal. 2010)[quoting Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir.1987)].
Here, Plaintiff's application to serve the Defendants by publication is deficient. Plaintiff has failed to show that he exercised reasonable diligence in locating the Defendants. Therefore, any judgment against the Defendants based on service by publication would be void. Olvera, 232 Cal. App. 3d at 41. Moreover, Plaintiff has not performed (or had someone perform on his behalf) an appropriate investigation into public records, as noted in Kott, which might be deemed sufficient before service by publication would be proper. Moreover, Plaintiff has not presented any authority, nor has the Court found any authority, to suggest that the U.S. Marshal must perform that investigation. Consequently, it does not appear to the satisfaction of the Court that Plaintiff has strictly complied with the letter and spirit of California Code of Civil Procedure § 415.50.
As a result, Plaintiff's Motion for Reconsideration is DENIED.