The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER GRANTING DEFENDANT DOUGLAS E. GOLDMAN'S MOTION TO DISMISS, DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION, AND DENYING PLAINTIFF'S MOTION TO COMPEL RESPONSE
Plaintiff Richard T. McRee ("McRee") brings this action against Defendants Douglas E. Goldman ("D. Goldman"), Richard N. Goldman ("R. Goldman"), Willie L. Brown, Jr. ("Brown"), Gavin Newsom ("Newsom"), and Bevan Dufty ("Dufty") pursuant to 15 U.S.C. § 4, 28 U.S.C. §§ 1331, 1337, 1338(a) & (b), and 1367, alleging patent infringement and a variety of constitutional 21 and common law claims. Before the Court are three motions: Defendant Douglas E. Goldman's 22 motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon 23 which relief can be granted; Plaintiff's motion to compel response from the other Defendants; and Plaintiff's motion for a preliminary injunction enjoining the alleged infringement. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral 26 argument and hereby VACATES the hearing and case management conference scheduled for October 13, 2011. Having considered the submissions of the parties, and for good cause shown, the Court hereby DENIES Plaintiff's motion to compel response from Defendants R. Goldman, Brown, Newsom, and Dufty, GRANTS Defendant Douglas E. Goldman's motion to dismiss in part 3 with prejudice and in part with leave to amend, and DENIES Plaintiff's motion for preliminary injunction.
For purposes of ruling on the motion to dismiss, the Court may generally "consider only (9th Cir. 2007) (internal quotation marks and citations omitted). "Pro se pleadings are liberally 10 construed." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). The Court allegations contained in the pleadings, exhibits attached to the complaint, and matters properly 8 subject to judicial notice." Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899-900 F.3d 948, 955 (9th Cir. 2011).
Patent), which claims a "Retractable Covering for Spaces" (RCS). Compl. ¶ 1; see Ex. A to Compl. ¶ 1.
the City and County of San Francisco ("CCSF") featuring an outdoor performance venue. Since 1938, the Stern Grove Festival Association ("SGFA") has been responsible for organizing and 21 presenting, through charitable donations, a series of admission-free summer concerts open to the 22 public and staged in Stern Grove's natural amphitheater. In 2004 and 2005, SGFA and CCSF 23 jointly oversaw a $15 million renovation of Stern Grove, which included construction of a new 24 stage. Compl. ¶ 54. The new stage included a series of three retractable canvas panels that could 25 be deployed above the stage to protect the performers from the sun and rain. McRee alleges that 26 these retractable panels ("Stern Grove retractable canopy") infringe his '269 Patent and that such 27 infringement on the part of Defendants was willful.
accepts the following allegations from Plaintiff's complaint as true and construes the pleadings in
the light most favorable to the nonmoving party. Colony Cove Props., LLC v. City of Carson, 640
McRee is a registered architect and sole inventor of U.S. Patent No. 6,003,269 ('269
Compl. McRee uses his trademark "SkyCover" to identify embodiments of the '269 Patent.
The site of the alleged infringement is Stern Grove, a public park owned and maintained by1 entire vision faithfully reflected both the very same idea and same location Plaintiff had 3 incidentally and confidentially mentioned to a Brown Agent inside the Mayor['s] Office six years 4 before." Id. ¶¶ 15, 17. Plaintiff disclosed his invention to the City of San Francisco in 1998 when 5 he was called into then-Mayor Brown's office for a confidential meeting concerning the possible 6 redevelopment of Candlestick Park. Id. ¶ 22. In the end, Candlestick Park was not redeveloped, 7 but the Stern Grove redevelopment proceeded. In June 2004, various SGFA staff received 8 brochures for the SkyCover without Plaintiff's authorization at a public meeting, and shortly 9 thereafter, plans for the Stern Grove renovations were released to the public. Id. ¶ 59. No 10 infringing SkyCover was apparent, but Plaintiff contacted SGFA to confirm this fact and was
stage in a June 20, 2005 newspaper article on the Stern Grove renovations. He, his wife, and a 14 colleague immediately drove to Stern Grove, where he witnessed the purported infringing structure 15 firsthand. Id. ¶¶ 16, 17. After learning of the infringement, Plaintiff contacted various Defendants 16 and their associates to notify them of the infringement and to attempt license discussions. Id. ¶ 70; 17
Ex. B to Compl. From 2005 through the filing of this suit, Plaintiff continued to reach out to the 18 named Defendants and their agents in hopes of gaining recognition for his invention and resolution 19 of his grievances, but Defendants were unresponsive. Compl. ¶¶ 18, 70-73. Instead, CCSF and 20
SGFA continued to use the Stern Grove retractable canopy, which was exposed to and enjoyed by 21 nearly one million people over the past six years. Id. ¶ 18. Plaintiff alleges that the infringement 22 has caused him and his family considerable harm, including economic harm, health problems, and 23 reputational/dignitary injury. Id. ¶ 70. Plaintiff attempted to retain an attorney to represent him in 24 the instant action but was unable to afford one and therefore filed this complaint pro se.*fn1 Id. ¶ 70.
Plaintiff alleges that Defendants knew of his patent prior to construction; indeed, that "the assured that some form of "shroud" would be used rather than a SkyCover. Id. ¶ 61.
Plaintiff alleges that he first learned of the suspected infringement from a photograph of the
II.LEGAL STANDARDS AND ANALYSIS
which essentially seeks the same relief as his Motion to Compel Response from Defendants Richard N. Goldman. "A federal court does not have jurisdiction over a defendant unless the 6 defendant has been served properly under [Federal Rule of Civil Procedure] 4." Direct Mail 7
A.MOTION TO COMPEL RESPONSE
The Court first addresses Plaintiff's ex parte Motion for Administrative Relief, ECF No. 41,
Brown, Newsom, and Dufty and to substitute the Richard and Rhoda Goldman Fund for the late
Specialists v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). While "Rule 4 is 8 a flexible rule that should be liberally construed so long as a party receives sufficient notice of the 9 complaint," United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984), "neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction" absent substantial compliance with Rule 4's requirements, Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986). 13
Plaintiff attempted to serve Brown, Newsom, and Dufty via hand delivery to the Mayor's Office of current Interim Mayor Ed Lee on June 8, 2011 and asserts that such service was proper in 16 accordance with Federal Rule of Civil Procedure 4(j)(2) and California Rule of Civil Procedure 416.50. FRCP 4(j)(2) and CRCP § 416.50, however, govern service of a local government entity, 18 not service of individuals. Plaintiff's Complaint does not name the City and County of San Francisco ("CCSF") as a defendant, nor does it specify whether it sues Brown, Newsom, and Dufty 20 in their individual or official capacities, or both.
a copy of the summons and of the complaint to the individual personally;  leaving a copy of 23 each at the individual's dwelling or usual place of abode with someone of suitable age and 24 discretion who resides there; or  delivering a copy of each to an agent authorized by 25 appointment or by law to receive service of process." Fed. R. Civ. P. 4(e)(2). Alternatively, 26 service may be accomplished by "following state law for serving a summons in an action." Id. 27
1.Defendants Brown, Newsom, and Dufty
Under the Federal Rules of Civil Procedure, an individual may be served by " delivering 4(e)(1). California law allows a plaintiff to serve a defendant by, among other means, mailing a copy of the summons and complaint "together with two copies of the notice and acknowledgment 2 provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender." 3
Plaintiff did not comply with the California rules for service of individuals, nor did he
5 comply with the federal rules by serving Defendants Brown, Newsom, or Dufty individually, 6 leaving a copy at each of their dwellings or places of abode, or delivering a copy to their authorized 7 agents.*fn2 Because Plaintiff has not properly served Defendants Brown, Newsom, or Dufty, his 8 motion to compel them to file an answer to his complaint is hereby DENIED. 9
Cal. Code Civ. P. § 415.30. 4
Nevertheless, although the Complaint does not identify the City and County of San Francisco as a defendant, Plaintiff's subsequent filings suggest that CCSF is the real party in interest. For example, Plaintiff's motion for administrative relief asks the Court to determine "that service to CCSF was indeed sufficient" and to "compel [CCSF] to respond to the complaint in 13 recognition of its legal responsibility for the actions of Defendants Brown, Newsom, and Dufty, 14 performed solely in their official capacities." Mot. Admin. Relief, ECF No. 41 at 3. In that same 15 motion, Plaintiff explains that Defendants Brown, Newsom, and Dufty "were named solely 16 because their infringement-inducing actions were performed while serving in their 'official' 17 capacities as elected representatives of [the City and County of San Francisco ("CCSF")]." Id. 18
19 proper service of any amended complaint on defendants as shall be named therein. Should Plaintiff 20 again name defendants in their individual capacity, service shall comply with Rule 4(e) of the 21
Federal Rules of Civil Procedure to be valid. Should Plaintiff choose to file suit against defendants 22 in their official capacity or against the City and County of San Francisco, service shall comply with 23
Rule 4(j)(2) of the Federal Rules of Civil Procedure to be valid. Rule 4(j)(2) provides that service 24
Accordingly, the Court grants Plaintiff leave to amend his Complaint and to re-attempt
of state or local government is accomplished by "(A) delivering a copy of the summons and of the 2 complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by 3 that state's law for serving a summons or like process on such a defendant." Fed. R. Civ. P. 4
4(j)(2). The California rules provide that "[a] summons may be served on a public entity by 5 delivering a copy of the summons and of the complaint to the clerk, secretary, president, presiding 6 officer, or other head ...