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Mazzaferro v. Parisi

United States District Court, N.D. California

March 9, 2017

RONALD MAZZAFERRO, Plaintiff,
v.
WILLIAM PARISI, KEN JOHNSON, SPENCER CRUM, and LYNN SEARLE, Defendants.

          ORDER SETTING ASIDE ENTRY OF DEFAULT AND DISMISSING COUNT ONE WITHOUT LEAVE TO AMEND

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         In this Section 1983 action, one defendant moves to set aside entry of default and two defendants move to dismiss. For the reasons below, both motions are Granted.

         STATEMENT

         In May 2013, defendant Ken Johnson, a deputy sheriff in the Sonoma County Police Department, arrested pro se plaintiff Ronald Mazzaferro, who now alleges Johnson arrested him without probable cause (Compl. ¶ 12). Mazzaferro obtained release on bond a day after the arrest (Dkt. No. 29). Mazzaferro then sent documents about his arrest to defendant Spencer Crum, a sergeant in the Sonoma County Police Department. Shortly after, Mazzaferro also submitted papers to the City Council of Sonoma regarding his arrest and Crum's alleged unwillingness to report information given to him by Mazzaferro (Compl. ¶¶ 16-19).[1]

         In January 2015, Johnson arrested Mazzaferro again. While being transported to jail, he alleges Johnson “made it clear” to him that Johnson arrested him because he had submitted complaints to the city council against Johnson and Crum (id. ¶ 20).

         In October 2016, Mazzaferro filed this Section 1983 action against Johnson and Crum, among others, for the violation of his Fourth Amendment rights. Mazafferro's complaint alleges that (1) all of the defendants caused his false arrest and imprisonment in May 2013 and (2) that all of the defendants caused his false arrest and imprisonment in January 2015 (Dkt. No. 1).

         In January 2017, Mazzaferro moved for entry of default against Crum for not timely responding to his complaint, which the clerk then entered (Dkt. Nos. 23, 26).

         Crum now moves to set aside the entry of default (Dkt. No. 34). Crum and Johnson also move to dismiss Mazzaferro's first claim for the first alleged false arrest and imprisonment in May 2013 (Dkt. No. 28). This order follows full briefing and oral argument.[2]

         ANALYSIS

         1. County Counsel Can Represent Crum and Johnson.

         Preliminarily, Mazzaferro contends that both the motion to set aside entry of default and the motion to dismiss should be denied because Sonoma County Counsel filed them on behalf of Crum and Johnson, even though Sonoma County is not a party to this action. This order disagrees. Sonoma County Counsel represent employees of Sonoma County in civil actions. Here, Johnson and Crum are both law enforcement officers of Sonoma County and therefore can be represented by Sonoma County Counsel in this action. Plaintiff is wrong on this contention.

         2. Entry of Default Should be Set Aside.

         Crum moves to set aside the entry of default. In the affidavit appended to Mazzaferro's motion for entry of default, Mazzaferro stated that Crum was “personally served” with the summons and complaint in December 2016 (Dkt. No. 24). Crum responds that Mazzaferro never personally served him. In December 2016, Crum avers, Mazzaferro attempted improper service by delivering copies of the summons and complaint to the City of Sonoma Police Department. Crum stopped working there in November 2015, when his contract to provide law enforcement services to the department on behalf of the Sonoma County Sheriff's Office ended. (He still works for the sheriff.) Crum argues that he has not stepped foot in the police building since then. In early January 2016, Crum's counsel sent Mazzaferro a letter informing Mazzaferro that he did not properly serve the complaint, but that Crum's counsel would accept service on Crum's behalf as of the date of the letter. The ...


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