United States District Court, N.D. California
VICTOR J. BRAVO, Plaintiff,
COUNTY OF SAN DIEGO, et al., Defendant.
ORDER REGARDING MOTION TO DISMISS AND TO SHOW CAUSE
JEFFREY S. WHITE, District Judge.
Now before the Court is the motion to dismiss filed by the County of San Diego (the "County"). The County moves to dismiss the first amended complaint ("FAC") for lack of personal service based on the failure of plaintiff Victor J. Bravo ("Bravo") to properly serve the County. The County also urges the Court to dismiss the complaint sua sponte as frivolous.
As recently stated by another case in this district, Bravo "is a frequent filer in the federal and state court systems. The California courts have deemed him to be a vexatious litigant. See Bravo v. Ismaj, 99 Cal.App.4th 211 (2002). Further, Plaintiff has been subjected to a prefiling order in the Ninth Circuit Court of Appeals since early 2009. See In re Bravo, No. 08-80086, Dkt. No. 16. Finally, the United States Supreme Court has noted that Plaintiff has "repeatedly abused this Court's process" and, as a result, Plaintiff is barred from filing any future petitions with that Court unless he pays the docketing fee and submits a petition which complies with Rule 33.1. In re Bravo, 130 S.Ct. 293 (2009)." Bravo v. CDCR Director, et al., N.D. Civ. Case No. 12-6459 (Docket No. 62).
In this instant action, Bravo filed his forty-nine page FAC against many defendants. It is difficult to determine the precise facts and legal theories of Bravo's complaint. From what the Court can decipher, the essence of his FAC appears to be his allegation that the defendants conspired to violate his civil rights and falsely imprisoned him.
Federal courts cannot exercise personal jurisdiction over a defendant without proper service of process pursuant to Federal Rule of Civil Procedure 4. Omni Capital Int'l, Ltd. V. Wolff & Co., 484 U.S. 97, 104 (1987); see also Hickory Travel Service, Inc. v. TUI AG, 213 F.R.D. 547, 551 (N.D. Cal. 2003). The plaintiff has the burden of establishing validity of service of process if service is contested. Grand Entm't Group Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993).
Thus, the Court must determine whether Bravo has demonstrated that he properly served the County. Bravo does not contend that he properly served the County. Instead, he requests an extension of time to effectuate service.
When service of process is insufficient, the district court has the discretion to dismiss the action or to quash the service and require plaintiff to re-serve defendant. S.J. v. Issaquah School Dist. No. 411, 470 F.3d 1288, 1294 (9th Cir. 2006); see also Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir. 1985). Service will ordinarily be quashed and the action preserved where "there is a reasonable prospect that plaintiff ultimately will be able to serve defendant properly...." 5 C. Wright & Miller, Federal Practice and Procedure § 1354, at 585 (1969); see also Hickory Travel Service, 213 F.R.D. at 555.
However, in this action, if the Court quashed service without granting an extension for time to serve, it would effectively dismiss the action. Federal Rule of Civil Procedure 4 provides that service must be effected within 120 days. More that one year has elapsed since the complaint in this action was filed. However, "Rule 4(m) explicitly permits a district court to grant an extension of time to serve the complaint after that 120-day period." Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003) (emphasis in original). A district court has full discretion to extend the time for service of process upon a showing of good cause. Fed.R.Civ.P. 4(m); In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001). "At minimum, good cause' means excusable neglect. A plaintiff may also be required to show the following: (a) the party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed." Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991).
Although the Court finds that Bravo has not demonstrated good cause, because Bravo is pro se, the Court will grant him an extension of time. However, before the Court provides Bravo additional time to serve the County, he must demonstrate that this action should not be dismissed.
The County urges the Court to dismiss this action sua sponte on the grounds that the FAC is frivolous. A court may sua sponte dismiss an action for failure to state a claim, but only after providing the plaintiff with an opportunity to submit a written memorandum in opposition. See Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981). Upon reviewing the FAC, the Court is inclined to dismiss the complaint on the following grounds.
Plaintiffs' complaint fails to comply with Federal Rule of Civil Procedure 8 ("Rule 8"), which requires plaintiffs to "plead a short and plain statement of the elements of his or her claim." Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000). Rule 8 requires each allegation to be "simple, concise, and direct." Fed.R.Civ.P. 8(d)(1). Where the allegations in a complaint are "argumentative, prolix, replete with redundancy and largely irrelevant, " the complaint is properly dismissed for failure to comply with Rule 8(a). McHenry v. Renne, 84 F.3d 1172, 1177, 1178-79 (9th Cir. 1996); see also Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir. 1981) (affirming dismissal of complaint that was" verbose, confusing and almost entirely conclusory'"). "Something labeled a complaint but... prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a complaint, " and "impose[s] unfair burdens on litigants and judges." McHenry, 84 F.3d at 1179-80.
A complaint that fails to comply with Rule 8 may be dismissed pursuant to Federal Rule of Civil Procedure 41(b). "The propriety of dismissal for failure to comply with Rule 8 does not depend on whether the complaint is wholly without merit." McHenry 84 F.3d at 1179. Even if the factual elements of the cause of action are present, but are scattered throughout the complaint and are not organized into a ...