Tate v. Owens

[12] 13 UNITED STATES DISTRICT COURT 14 SOUTHERN DISTRICT OF CALIFORNIA [15] 16 MARKEL TATE, Case No.: 20-cv-00199-H-MDD 17 Plaintiff, ORDER DENYING MOTION FOR 18 v. ORDER PERMITTING SERVICE BY PUBLICATION 19 CORRECTIONAL OFFICER OWENS; CORRECTIONAL OFFICER RIOS, 20 [Doc. No. 8.] SGT. ALEXANDER; SGT. GARCIA, 21 Defendants. [22] 23 On May 11, 2021, the Clerk set a hearing for an order to show cause for failure to 24 prosecute. (Doc. No. 5.) The Court held the hearing on June 14, 2021, and Chijioke Ikonte 25 appeared on behalf of Plaintiff Markel Tate (“Plaintiff”). (Doc. No. 6.) The Court 26 ultimately declined to dismiss the case. (Doc. No. 7 at 2.) Instead, the Court gave Plaintiff 27 thirty days to file a proof of service or else face dismissal. (Id.) Plaintiff’s thirty-day 28 deadline expires August 6, 2021. (See id.) 1 On August 4, 2021, Plaintiff filed a motion for an order permitting service by 2 publication. (Doc. No. 8.)1 Federal Rule of Civil Procedure 4(e)(1) permits service in 3 accordance with the law of the state “where the district court is located or where service is 4 made.” California permits service by publication with a court order only “if upon affidavit 5 it appears to the satisfaction of the court in which the action is pending that the party to be 6 served cannot with reasonable diligence be served in another manner and that . . . [a] cause 7 of action exists against the party.” Cal. Civ. Proc. Code § 415.50 (a)(1). 8 Here, Plaintiff fails to demonstrate that he used reasonable diligence to locate 9 Defendants Officer Owens, Officer Rios, Sergeant Alexander, and Sergeant Garcia 10 (collectively, “Defendants”). According to a declaration submitted by Plaintiff’s attorney, 11 Plaintiff only attempted to serve Defendants twice since filing the complaint. (See Doc. 12 No. 8-1, Ikonte Decl. ¶ 3, 9.) Further, Plaintiff possessed potentially helpful information 13 that was not used in these initial service attempts. (See id. ¶ 7 & Ex. A.) Plaintiff’s attorney 14 provided this information to the Richard J. Donovan State Prison litigation coordinator on 15 August 4, 2021, the same day Plaintiff filed the instant motion. (Id.) Plaintiff’s attorney 16 is still waiting to hear back from the litigation coordinator. (Id. ¶ 8.) As a result, Plaintiff’s 17 motion is premature. Watts v. Crawford, 896 P.2d 807 , 811 n.5 (1995) (explaining due 18 process requires use of service by publication “only as a last resort” after “exhaustive 19 attempts to locate the defendant”). 20 Moreover, Plaintiff’s motion fails to meet the statutory requirements of section 21 415.50(a)(1) of the California Code of Civil Procedure. Pursuant to section 415.50(a)(1), 22 a court may only order service by publication in California if the requesting party submits 23 an affidavit containing facts demonstrating a cause of action exists. Harris v. Cavasso, 137 24 Cal. Rptr. 410 , 411 (Ct. App. 1977). In other words, the plaintiff must “provide 25 independent evidentiary support, in the form of a sworn statement of facts, for the existence [26] 27 1 The Court, pursuant to its discretion under Local Rule 7.1(d)(1), determines that Plaintiff’s motion 28 is fit for resolution without oral argument and submits it on the papers. Accordingly, the Court vacates the 1 || of a cause of action against the defendant.” McNamara v. Sher, No. 11-CV-1344-BEN2 || WVG, 2012 WL 760531 , at *4 (S.D. Cal. Mar. 8, 2012). Here, Plaintiff submits some 3 || documents detailing Plaintiff’s allegations against Defendants. (Ikonte Decl. § 7 & Ex. B.) 4 || But the Court is unclear whether the allegations referenced in these documents were made 5 ||under the penalty of perjury. As such, Plaintiff’s motion is not supported by an affidavit 6 showing that “a cause of action exists” against Defendants. See Harris, 137 Cal. Rptr. at 7 |\|411 (holding statute only permits showing by affidavit); Colonize Media, Inc. v. Palmer, 8 ||No. 120CVO1053DADSAB, 2021 WL 1839697 , at *3 (E.D. Cal. May 7, 2021) 9 ||(‘California courts have held that an [sic] declaration by counsel, and even a verified 10 ||complaint, are insufficient to meet the jurisdictional requirement.”); see_also Olvera v. 11 || Olvera, 283 Cal. Rptr. 271, 276 (Ct. App. 1991) (explaining courts must strictly comply 12 || with statutory requirements because due process disfavors service by publication). 13 For the foregoing reasons, the Court denies Plaintiff’s motion for an order permitting 14 || service by publication without prejudice. That being said, one final extension of time for 15 || service is appropriate. Accordingly, the Court gives Plaintiff an additional thirty (30) days 16 the date of this Order to file a proof of service indicating that he properly served 17 || Defendants or else face dismissal. 18 IT IS SO ORDERED. 19 || DATED: August 5, 2021 “ 21 UNITED STATES DISTRICT COURT