PHYLLIS J. HAMILTON, District Judge.
Before the court are the motions of plaintiff Benjamin P. Cannon for leave to file motions for reconsideration of four orders issued by the court — the order dismissing defendant Sorinne Ardeleanu from the case, the order denying the motion for default judgment against defendant
Under Civil Local Rule 7-9, a party seeking leave to file a motion for reconsideration must specifically show
Civ. L.R. 7-9(b).
The court has reviewed plaintiff's motions and finds that they must be DENIED because they do not meet the requirements of Rule 7-9(b).
On June 23, 2011, the court received a letter by certified mail from the offices of Harry K. Jeung, CPA, in San Francisco, California. The letter stated that "[t]his package was dropped off at our office. The intended recipient is not located at this office." Attached to the letter was a copy of the summons and complaint in the above-entitled action. The summons is addressed to "See above named defendants." Listed "above" as defendants are "City of Petaluma, County of Sonoma, etc."
On June 28, 2011, plaintiff filed a proof of service, asserting that Ms. Ardeleanu had been served on May 24, 2011, by leaving a copy of the summons and complaint at Ms. Ardeleanu's ususal place of employment, with "Harry Jung/Owner."
Also on June 28, 2011, plaintiff filed a request for entry of default. With that request, plaintiff submitted a declaration stating that he had been unable to serve Ms. Ardeleanu at the address he believed was her residence (based on an address provided for Ms. Ardeleanu by a party to a legal proceeding in the San Francisco County Superior Court), and that on May 24, 2011, the process server had left a copy of the summons and complaint at her "usual place of business," which plaintiff claimed was the office of Harry Jeung, CPA.
Plaintiff claimed that he had obtained information regarding Ms. Ardeleanu's "usual place of business" from entries on two social networking sites — Linkedin.com and Viadeo.com — and also based on a telephone conversation with an unidentified person at the office of Harry Jeung, who allegedly told plaintiff that Ms. Ardeleanu worked there.
On June 30, 2011, the clerk declined the default. On July 26, 2011, plaintiff submitted a letter to the court stating that Ms. Ardeleanu had been evading service, and requesting that the court enter the default. On August 5, 2011, the court issued an order directing plaintiff to complete service on Ms. Ardeleanu and to file a proof of service no later than August 19, 2011. Otherwise, the court stated, Ms. Ardeleanu would be dismissed from the case pursuant to Federal Rule of Civil Procedure 4(m).
On August 16, 2011, plaintiff filed a request for entry of default against Ms. Ardeleanu, which was accompanied by a declaration in substantially the same form as the declaration previously filed with the June 28, 2011 request to enter default. In addition, plaintiff also asserted that Ms. Ardeleanu had "actual notice" of the lawsuit because she had moved, through counsel, to quash a subpoena for her telephone records that plaintiff had served on AT&T (but not on Ms. Ardeleanu, who had been notified about the subpoena by AT&T).
On August 29, 2011, the court issued an order dismissing Ms. Ardeleanu from the action, pursuant to Rule 4(m), on the basis that plaintiff had failed to file a proof of service by the deadline set in the August 5, 2011 order. The court also denied plaintiff's motion for entry of default.
On September 15, 2011, the court issued an order granting in part and denying in part defendants' motions to dismiss the FAC. On October 12, 2011, plaintiff filed a second amended complaint ("SAC"), in which, among other things, he asserted claims against Ms. Ardeleanu. Defendants moved to dismiss, and on April 6, 2012, the court issued an order granting the motions in part and denying them in part. In that order, the court noted that all claims against Ms. Ardeleanu had previously been dismissed.
On April 18, 2012, plaintiff filed a motion for leave to file a motion for reconsideration of what he claimed was the April 6, 2012 order dismissing Ms. Ardeleanu from the case for failure to effectuate proper service. In that motion, plaintiff again argued that Ms. Ardeleanu had "actual knowledge" of the lawsuit, based on her counsel's having filed a motion to quash the subpoena for her cell phone records. He also repeated the assertions from the declarations previously filed in support of the June 28, 2011 and August 16, 2011 requests to enter default (detailed above). On April 20, 2012, the court issued an order denying the motion, noting that Ms. Ardeleanu had been dismissed from the case on August 29, 2011, not in the April 6, 2012 order as plaintiff had asserted. The court also noted that Rule 4(m) dismissals are not dismissals with prejudice, and that following the August 29, 2011 dismissal, plaintiff was free to file another complaint against Ms. Ardeleanu.
On May 29, 2012, plaintiff filed the present motion for leave to file a motion for reconsideration of the order dismissing Ms. Ardeleanu from the case. In his "amended motion," plaintiff makes essentially the same argument that he previously made — that Ms. Ardeleanu was served "in a timely manner under relevant Federal and State law." He repeated the assertions from the declarations filed in support of the June 18, 2011 and August 16, 2011 requests to enter default, as well as the April 18, 2012 request for leave to file a motion for reconsideration. In addition, he now suggests that Mr. Jeung is "aiding and abetting" Ms. Ardeleanu's attempt to "evade lawful service," and argues that Mr. Jeung should have provided a declaration under penalty of perjury.
The court finds that the motion must be DENIED. Civil Local Rule 7-9 prohibits a party seeking leave to file a motion for reconsideration from repeating the arguments that party previously made to the court prior to entry of the interlocutory order as to which reconsideration is sought.
The court previously denied the motion, and does so again, because plaintiff's arguments are without merit. Federal courts cannot exercise personal jurisdiction over a defendant without proper service of process.
As an initial matter, actual notice is not a substitute for service of process.
In addition, it is plaintiff's burden to establish that the court has jurisdiction over a defendant, which, in this case, requires a showing that Ardeleanu was properly served.
Information obtained from social networking sites is inherently unreliable, as are reports of conversations with unidentified third parties, and for that reason are insufficient to establish an individual's "usual place of business." In addition, the fact that the court received a letter from Mr. Jeung's office stating that plaintiff was not at that address — while not determinative — also suggests that Mr. Jeung's office was not Ms. Ardeleanu's usual place of business at the time that plaintiff attempted to serve her at that address.
Moreover, as the court previously indicated, the dismissal was without prejudice, and plaintiff was free to file another lawsuit against Ardeleanu, which he has evidently chosen not to do.
On June 29, 2011, the clerk entered the default of defendant
On August 16, 2011, plaintiff filed a motion for leave to file a motion for reconsideration of the order denying the motion for default judgment against the
On April 18, 2012, plaintiff filed the present request for leave to file a motion for reconsideration of the order denying the motion for default judgment as to the
The first amended complaint ("FAC"), which is the version of the complaint that was operative at the time the court denied the motion for default judgment, alleges that defendant Deputy Chris Spallino "published a press release ... engineered to express and imply [plaintiff's] guilt, including publishing his home address[;]" that "[o]ver 50 press agencies picked up the story[;]" and that "[d]efendant Sonoma Sun published it as factual... and failed to publish a retraction even after [plaintiff's attorney] notified them in email of [plaintiff's] factual innocence." FAC ¶ 61. Nowhere does plaintiff allege that the
The court has previously suggested to plaintiff that he read the orders of the court more carefully. With regard to the order denying the motion for default judgment, the court did not "find the statements in the press release to be non-defamatory." Rather, the court simply found that plaintiff had failed to allege facts in the first amended complaint sufficient to state a viable claim of any sort against the
Plaintiff has articulated no reason for the court to revisit these findings. To date, plaintiff has not alleged a viable claim against the
In the September 15, 2011, order granting defendants' motions to dismiss the FAC, the court dismissed the state law claims against the City of Sonoma with prejudice, and dismissed the § 1983 claims with leave to amend to allege facts showing municipal liability, and to plead facts sufficient to support a claim of constitutional violations. Both in the order and at the September 14, 2011 hearing, the court advised plaintiff that the allegations were insufficient because plaintiff had failed to plead facts connecting any particular defendant with any particular constitutional violation, or alleging the necessary elements of each such claim.
Plaintiff filed the second amended complaint ("SAC"), and both the Petaluma defendants and the Sonoma defendants (including the City of Sonoma) again moved to dismiss. On April 6, 2012, the court issued an order granting the Petaluma defendants' motion, and granting the Sonoma defendants' motion in part and denying it in part. With regard to the City of Sonoma, the court noted that there were no facts pled that could be interpreted as supporting a claim of municipal liability against the City, as required under
Plaintiff now seeks reconsideration of that order, arguing that "it is an undisupted fact that the City of Sonoma contracts to defendant County of Sonoma, and the Sonoma County Sherriff's [sic] department, for police services." In support, he cites to the City of Sonoma's website. He also asserts that "[t]he criminal case that predicated this matter before the court begins with `SON'" — which he claims indicates a "City of Sonoma case number." He argues that reconsideration is warranted under Civil Local Rule 7-9(a)(3) because the court failed to "consider material facts or dispositive legal arguments which were presented to the Court in support of or opposition to the interlocutory order" of which he seeks reconsideration.
Regardless of whether the fact of the contractual relationship between the City of Sonoma and the Sonoma County Sheriff's Department can or cannot be considered to constitute a material fact, it is not true that plaintiff previously presented this fact to the court in opposition to the Sonoma defendants' motion to dismiss. Nowhere in his opposition to the Sonoma defendants' motion to dismiss did he argue that the City of Sonoma was liable for violating his constitutional rights because the Sheriff's Department was acting on the City's behalf. Indeed, nowhere in the SAC's factual allegations or causes of action (with one minor exception, not relevant to the prior motions) does plaintiff even mention the City of Sonoma.
Accordingly, as plaintiff has provided no bases for reconsideration of the order dismissing the City of Sonoma, the court finds that the motion must be DENIED.
In the SAC, plaintiff alleged that he arrived at his residence at approximately 10:00 p.m. on February 11, 2010, and that as he was parking his vehicle on the street, he was arrested by Sonoma County Sheriff's Deputies Sparkman and DOE, who were later joined by Deputy Naugle. SAC ¶ 69, 73. He asserted that he was held near his vehicle for more than an hour, and that he was then transported to the Sonoma County Jail, where he remained until he posted bail "the next day." SAC ¶¶ 72-74. He alleged further that "commencing approximately" 10:30 p.m., Deputies Naugle, Sparkman, Murphy, and Hanshew served a search warrant at this residence. SAC ¶ 76. He asserted that service of the search warrant was unlawful under California Penal Code § 1533, which prohibits searches between 10:00 p.m. and 7:00 a.m. unless a nighttime search has been authorized. SAC ¶ 76 & n.2.
In the April 6, 2012 order re defendants motions to dismiss the SAC, the court noted that plaintiff conceded that he was not at his residence at the time the warrant was served, and stated that he "alleges no facts regarding service of the search warrant." April 6, 2012 Order at 16. The court also found that plaintiff could not state a claim under § 1983 for violation of a state criminal statute, because "[a] violation of state law regarding service of search warrants does not ... constitute a violation of the United States Constitution or federal law."
In the present motion, plaintiff argues that reconsideration is warranted under Civil Local Rule 7-9(a)(3) because the court failed to "consider material facts or dispositive legal arguments which were presented to the Court in support of or opposition to the interlocutory order" of which he seeks reconsideration. He contends that the "[d]ismissal of claims related to night service of a warrant was due to plain and manifest error." In particular, plaintiff takes issue with the statement in the April 6, 2012 order that the SAC "alleges no facts regarding service of the search warrant." He argues that the SAC
The court has reviewed plaintiff's motion, as well as the SAC and the papers filed in connection with the prior motions to dismiss, and finds that the motion must be DENIED, because plaintiff has not shown that the court failed to consider material facts or dispositive legal arguments.
It is true that plaintiff alleges in the SAC that the warrant was served at "approximately 10:30 p.m." However, under
Moreover, as the court explained in the April 6, 2012 Order, the entire operation commenced at 10:00 p.m. when plaintiff was stopped on the street outside his residence, and the search of the residence pursuant to the search warrant can be viewed as part of that single operation.
Plaintiff also argues in the present motion that a nighttime search is per se unreasonable under the Fourth Amendment. The restriction that limits the time for service of the warrant to the hours between 7:00 a.m. and 10:00 p.m. is a statutory restriction on the manner of service of a warrant imposed by California law. To the extent that it was plaintiff's intent to assert that the alleged nighttime search was unreasonable in violation of the Fourth Amendment — as opposed to simply attempting to allege a constitutional claim based on violation of Penal Code § 1533 — the SAC still fails to allege facts sufficient to state a plausible claim.
As the court previously noted, violation of a state statute, standing alone, is not sufficient to provide a basis for a constitutional claim under § 1983. The United States Supreme Court has yet to decide whether violation of a state-law restriction on nighttime service of a search warrant is, like a violation of the knock-notice rules, subject to the reasonableness inquiry under the Fourth Amendment — and if so, what hours reasonably constitute "nighttime." Assuming for the sake of argument, however, that service of the warrant at 10:30 p.m. can be analyzed under the Fourth Amendment's reasonableness inquiry, the court finds that the SAC alleges no facts supporting a claim of a Fourth Amendment violation, apart from the bare conclusory allegation regarding the purported time of service.
To state a claim for an unreasonable search or for unreasonable execution of a warrant under the Fourth Amendment, the plaintiff must allege facts sufficient to show that the officers' actions were objectively unreasonable.
Further, "Fourth Amendment rights are personal rights that may not be asserted vicariously."
Finally, plaintiff has not alleged an affirmative link between any injury and the conduct of a specific defendant. Indeed, the only allegation of injury in the SAC is plaintiff's claim that his TV was "smashed," and that the officers left a mess, which required "weeks of cleanup." If this allegation is true, any damage to plaintiff's property was not caused by the execution of the warrant at 10:30 p.m., as it could just as easily have occurred had the warrant been executed before 10:00 p.m.
