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Cotti v. California Department of Human Services Director

United States District Court, N.D. California, San Jose Division

September 4, 2019

ALICE COTTI, et al., Plaintiffs,
v.
CITY OF SAN JOSE, et al., Defendants.

         ORDER TO SHOW CAUSE WHY UNSERVED DEFENDANTS SHOULD NOT BE DISMISSED WITHOUT PREJUDICE; DENYING PLAINTIFFS' MOTION TO SET ASIDE JUNE 24 ORDER; DENYING WITHOUT PREJUDICE MOTION TO ADD DEFENDANTS AND FILE A FOURTH AMENDED COMPLAINT; AND EXTENDING DEADLINE TO FILE A PROPERLY NOTICED MOTION FOR LEAVE TO AMEND THE COMPLAINT [RE: ECF 126]

          BETH LAB SON FREEMAN UNITED STATES DISTRICT JUDGE

         On June 24, 2019, the Court issued an order (“June 24 Order”) addressing several pending motions and summarizing the status of the case with respect to the twenty-four defendants named in the operative third amended complaint. See June 24 Order, ECF 125. The Court ordered as follows:

         (1) Seven defendants were dismissed without leave to amend pursuant to their unopposed motions to dismiss: Rebekah Children's Services, City of San Jose, San Jose Police Department, Judge Patrick E. Tondreau, Amy Choi, Nikolas Arnold, and County of Santa Clara.

         (2) Eight defendants were dismissed sua sponte, without prejudice to a motion for leave to amend the pleading, because they were added in violation of the Court's order: Officer Gaona, Officer Avila, Sergeant Vu Tran, Family Legal Advocates, Dependency Advocacy Center, Wesley Schroeder, John Faulconer, and Legal Advocates for Youth and Children. Plaintiffs were directed to file any motion for leave to amend to add these defendants on or before July 24, 2019.

         (3) Service of process was quashed as to five defendants: Francesca LeRue, Pa Chang, Phu Nguyen, Jeff Johnson, and Sarah Gerhart. Plaintiffs were granted thirty days, until July 24, 2019, to effect service of process on these defendants.

         (4) Four defendants had not been served: Department of Social Services, Santa Clara County Department of Family and Child Services, Social Security Agency of Santa Clara County, and Amy Guy. Plaintiffs were directed to file a status report as to these defendants, and the defendants as to whom service of process was quashed, on or before July 26, 2019.

         Plaintiffs did not file a properly noticed motion for leave to amend to add defendants; did not effect service of process on Defendants LeRue, Chang, Nguyen, Johnson, and Gerhart; and did not file a status report with respect to Defendants Department of Social Services, Santa Clara County Department of Family and Child Services, Social Security Agency of Santa Clara County, and Amy Guy. Instead, Plaintiffs filed a “Motion to Set Aside Order of June 24, 2019; Motion to Add Defendants; Motion for Leave to File Fourth Amended Complaint.” See Pls.' Motion, ECF 126. The Court addresses service of process, Plaintiffs' motion to set aside the June 24 Order, and Plaintiffs' failure to file a properly noticed motion for leave to amend in turn, as follows.

         I. SERVICE OF PROCESS

         Plaintiffs were granted thirty days, until July 24, 2019, to effect service of process on Defendants LeRue, Chang, Nguyen, Johnson, and Gerhart. Plaintiffs have not filed proofs of service with respect to these defendants. Plaintiffs filed a status report on July 20, 2019, stating that “Plaintiffs have provided information available to a process server to provide proper service upon Defendants LaRue, Chang, Gerhart, Johnson and Nguyen. As of the time of the preparation of this report, those Defendants have not been served.” Status Report, ECF 127.

         Plaintiffs were ordered to submit a status report regarding the status of service of process on Defendants Department of Social Services, Santa Clara County Department of Family and Child Services, Social Security Agency of Santa Clara County, and Amy Guy. Plaintiffs have not complied. The status report submitted on July 20, 2019 does not address these defendants.

         Plaintiffs are ORDERED TO SHOW CAUSE, in writing and on or before September 18, 2019, why the following unserved Defendants should not be dismissed for failure to effect service of process as required under Federal Rule of Civil Procedure 4(m): Francesca LeRue, Pa Chang, Phu Nguyen, Jeff Johnson, Sarah Gerhart, Department of Social Services, Santa Clara County Department of Family and Child Services, Social Security Agency of Santa Clara County, and Amy Guy.

         II. PLAINTIFFS' MOTION TO SET ASIDE JUNE 24 ORDER

         Plaintiffs have filed a motion to set aside the June 24 Order, which the Court takes to be a motion to vacate the June 24 Order. See Pls.' Motion, ECF 126. Plaintiffs' motion does not articulate any legal basis for vacating the June 24 Order. Plaintiffs explain that their attorney, Michelle Brenot, suffered an illness which caused her to be out of the office from early March 2019 through April 19, 2019. It is during that period of absence that Plaintiffs' oppositions were due with respect to the motions to dismiss filed by Rebekah Children's Services, City of San Jose, San Jose Police Department, Judge Patrick E. Tondreau, Amy Choi, Nikolas Arnold, ...


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