Anthony Oliver v. River City Process Service, Inc. et al.

• Court: District Court, S.D. California
• Decided: July 17, 2024
• Docket: 3:23-cv-01739
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 Case No.: 23-cv-1739-DMS-KSC Anthony Oliver,

10 GDC ID: 1002060648, ORDER DENYING PLAINITFF’S 11 Plaintiff, MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT 12 v. AND MOTIONS FOR DEFAULT 13 RIVER CITY PROCESS SERVICE, INC. JUDGMENT et al., 14 Defendants. 15 16 Pending before the Court is pro se Plaintiff Anthony Oliver’s motion for leave to 17 file a second amended complaint and motions for default judgment against Defendants By 18 the Book Attorney Service, Inc., and California Court Services, LLC. (ECF Nos. 58, 59, 19 60.) For the following reasons, the Court denies Plaintiff’s motions. 20 I. BACKGROUND 21 Plaintiff is currently incarcerated at Rogers State Prison in Reidsville, Georgia. 22 Plaintiff brings this matter against sixteen e-file vendors listed on the San Diego County 23 Superior Court’s website alleging that Defendants prevented him from using his fee waiver 24 to file pleadings electronically in San Diego County Superior Court.1 Plaintiff alleges a 25 26 27 1 Plaintiff’s complaint alleges he filed a pro se civil complaint in San Diego County Superior Court on September 8, 2019, “to seek paternity of his then 15 year old son. . . .” The Court is unable to locate this 28 1 federal claim under 42 U.S.C. § 1983 and two state law claims under the Cal. Business and 2 Protections Code § 17200 and negligence. Plaintiff voluntarily dismissed twelve of the 3 sixteen listed Defendants after they “changed their policies and procedures that now allows 4 pro se litigants or litigants with a valid fee waiver to e-file their pleadings with a valid fee 5 waiver order.” (Pl.’s Mot. for Leave to File a Second Amended Complaint, (“Pl.’s Mot.”) 6 ECF No. 58, at 3-4). Thus, only four Defendants remain. Of the remaining four, Plaintiff 7 failed to serve two Defendants, Golden State Attorney Service, Inc. and Bosco Legal 8 Services, LLC, with proper notice. Accordingly, Plaintiff seeks default judgments against 9 only Defendants By the Book Attorney Service Inc. and California Court Services, LLC. 10 Plaintiff also seeks leave to file a Second Amended Complaint to add three additional e- 11 file vendors listed on the San Diego County Superior Court’s website as Defendants. The 12 Court takes judicial notice of the fact that Plaintiff has a nearly identical suit pending in the 13 Eastern District of California alleging the same violations against four e-file vendors listed 14 on the El Dorado County Superior Court’s website. Anthony Oliver v. DDS Legal Support 15 Systems, No. 2:24-cv-0514-KJM-JDP (E.D. Cal. Feb. 20, 2024).2 16 Notably, Plaintiff bypassed the Court’s mandatory screening process under the 17 Prison Litigation Reform Act by paying the filing fee and failing to disclose his 18 incarceration. In addition, had Plaintiff attempted to obtain in forma pauperis status, his 19 suit would have been dismissed under 28 U.S.C. § 1915(g) because he has pursued over 20 three civil actions while incarcerated, all of which were dismissed on grounds that they 21 were frivolous, malicious, or failure to state a claim upon relief which can be granted. 18 22 U.S.C. § 1915(g); see Oliver v. SCRAM of California, Inc., 2021 WL 4244723 (S.D. Cal. 23 Sep. 17, 2021). Plaintiff also has been declared a vexatious litigant in the California state 24 court system and multiple U.S. District Courts, including the Northern and Central Districts 25 26 27 2 See United States ex rel. Robinson Rancheria Citizens Council v. Borneo Inc., 971 F.2d 244, 248 (9th Cir. 1992) (holding that Rule 201 allows courts “to ‘take notice of proceedings in other courts, both within 28 1 of California. See Oliver v. EHM Productions, Inc., 2023 WL 6519755 at *2 (N.D. Cal. 2 Sept. 15, 2023) (declaring Plaintiff a vexatious litigant after concluding that Plaintiff “has 3 a long track record of filing numerous unsuccessful lawsuits in both state and federal 4 court,” and “[b]ased on his litigation history, there is no basis for believing that [Plaintiff] 5 will cease filing frivolous suits going forward.”) 6 II. DISCUSSION 7 A. Notice 8 Under Rule 4(m) of the Federal Rules of Civil Procedure, a plaintiff must provide 9 service of summons and complaint upon a defendant 90 days after the filing of the 10 complaint. Fed. R. Civ. P. 4(m). If a plaintiff fails to provide timely notice, a court “must 11 dismiss the action without prejudice against that defendant or order that service be made 12 within a specific time. But if the plaintiff shows good cause for the failure, the court must 13 extend the time for service for an appropriate period.” Id. 14 Plaintiff failed to serve the complaint upon Defendants Golden State Attorney 15 Service, Inc. and Bosco Legal Services, LLC in accordance with Rule 4(m). Additionally, 16 Plaintiff served Defendant California Court Services, LLC on January 8, 2024, (ECF No. 17 36), 112 days after Plaintiff filed his complaint on September 18, 2023, outside the 90-day 18 period under Rule 4(m). Plaintiff failed to acknowledge his untimely service, let alone 19 provide good cause. Accordingly, the Court DISMISSES Defendants California Court 20 Services, LLC, Golden State Attorney Service, Inc., and Bosco Legal Services, LLC, 21 without prejudice under Rule 4(m). Thus, the Court DENIES Plaintiff’s motion for default 22 judgment against Defendant California Court Services, LLC and addresses Plaintiff’s 23 remaining motions only as they pertain to the last remaining defendant, By the Book 24 Attorney Service, Inc. 25 B. Motion for Leave to File a Second Amended Complaint 26 Rule 15(a) of the Federal Rules of Civil Procedure states that leave to amend “shall 27 be freely given when justice so requires,” Fed. R. Civ. P. 15(a), and “this policy is to be 28 applied with extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1 1074, 1079 (9th Cir. 1990). However, leave to amend “is not to be granted automatically.” 2 In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013). A 3 court considers five factors in deciding whether to grant leave to amend: “[1] undue delay, 4 [2] bad faith or dilatory motive on the part of the movant, [3] repeated failure to cure 5 deficiencies by amendment previously allowed, [4] undue prejudice to the opposing party 6 by virtue of allowance of the amendment, [and] [5] futility of amendment.” Leadsinger, 7 Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008) (quoting Foman v. Davis, 8 371 U.S. 178, 182 (1962)). “Futility alone can justify the denial of a motion for leave to 9 amend.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). 10 Here, the Court denies leave to amend on grounds of futility because plaintiff 11 “cannot state a plausible basis for relief.” Cervantes v. Countrywide Home Loans, Inc., 12 656 F.3d 1034, 1043 (9th Cir. 2011). Plaintiff pleads a federal claim under §1983 alleging 13 that multiple e-file vendors violated his First Amendment right to access the courts by 14 requiring Plaintiff to pay a filing fee to electronically file pleadings in San Diego County 15 Superior Court. However, no such right exists. Plaintiff fails to cite any authority to 16 support his contention that e-filing is a constitutional right, nor is the Court aware of any. 17 “Rather, e-filing is a privilege which in some circumstances may be extended to self- 18 represented parties.” Miller v. Sacramento City Unified School District, 2021 WL 3539733 19 at *3 (E.D. Cal. Aug. 11, 2021). Although Plaintiff has a constitutional right to “access the 20 courts,” he does not have a constitutional right to file pleadings electronically. 21 Additionally, even if such a right existed, the Court would deny Plaintiff’s motion for leave 22 because Plaintiff admits that fourteen of the sixteen originally listed Defendants “changed 23 their policies and procedures” to allow Plaintiff to file pleadings electronically for no 24 additional cost. (Pl.’s Mot. for Leave, at 3-4). Thus, Plaintiff acknowledges there are at 25 least fourteen e-file vendors that will permit him to file his pleadings electronically at no 26 additional cost. Plaintiff does not have a constitutional right to file pleadings electronically 27 through one e-file vendor, let alone sixteen, or if granted leave to amend, nineteen. Because 28 no amendment can cure this deficiency, the Court DENIES Plaintiff’s motion for leave to 1 file a Second Amended Complaint. 2 C. Motion for Default Judgment 3 The Clerk of the Court is required to enter default “when a party against whom a 4 judgment for affirmative relief is sought has failed to plead or otherwise defend, and that 5 failure is shown by affidavit or otherwise.” Fed. R. Civ. P. 55(a). Federal Rule of Civil 6 Procedure 55(b)(2) allows for entry of default judgment by the court. However, “[a] 7 plaintiff does not receive default judgment as a matter of right; rather, a court has discretion 8 as to whether it should be granted.” United States v. Boyce, 148 F. Supp. 2d. 1069, 1093 9 (S.D. Cal. 2001) (citations omitted). 10 In exercising that discretion, courts consider the following factors: 11 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of money 12 at stake in the action[,] (5) the possibility of a dispute concerning material 13 facts[,] (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on 14 the merits. 15 Id. (quoting Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986)). 16 i. Possibility of Prejudice to Plaintiff 17 The first Eitel factor considers the possibility of prejudice to the plaintiff if a default 18 judgment is not entered. See Eitel, 782 F.2d at 1471-72. Plaintiff contends Defendant By 19 the Book Attorney Service, Inc. prohibited him from using his fee waiver to submit 20 pleadings electronically. Defendant failed to appear or respond to Plaintiff’s allegations. 21 If a default judgment is not entered, Plaintiff will likely have no recourse against 22 Defendant. See Craigslist, Inc. v. Naturemarket, Inc., 694 F. Supp. 2d 1039, 1054 (N.D. 23 Cal. 2010). Thus, the Court finds this factor weighs in favor of granting Plaintiff’s motion 24 for default judgment. 25 ii. Merits of Plaintiff’s Substantive Complaint and Sufficiency of the Complaint 26 The second and third Eitel factors relate to the merits of Plaintiffs’ substantive claim 27 and the sufficiency of the complaint. See id. These factors “require that a plaintiff state a 28 1 claim on which it may recover.” Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1007 (C.D. 2 Cal. 2014) (internal citations and quotation marks omitted). “Courts have a duty to 3 construe pro se pleadings liberally, including pro se motions as well as complaints.” 4 Bernhardt v. Los Angeles Cnty., 339 F. 3d 920, 925 (9th Cir. 2003). However, “those 5 pleadings nonetheless must meet some minimum threshold in providing a defendant with 6 notice of what it is that it allegedly did wrong.” Brazil v. U.S. Dep't Navy, 66 F.3d 193, 7 199 (9th Cir. 1995). 8 For the reasons discussed above, Plaintiff fails to allege any cognizable legal theory 9 that could support liability against an e-file vendor as Plaintiff does not have a 10 constitutional right under 42 U.S.C. § 1983 to file pleadings electronically. Thus, 11 Plaintiff’s FAC fails the second and third Eitel factors. “Entry of default judgment is not 12 appropriate where the second and third factors weigh against plaintiff.” Nationstar 13 Mortgage LLC v. Presley, 2023 WL 121746 at *3 (citing Mnatsakanyan v. Goldsmith & 14 Hull APC, 2013 WL 10155707, *10 (C.D. Cal. May 14, 2013) (“The fact that factors two 15 and three weigh against the entry of default judgment is particularly significant, as courts 16 often treat these as the most important factors.”) These factors heavily weigh against 17 granting Plaintiff’s motion for default judgment. 18 iii. Sum of Money at Stake 19 The fourth Eitel factor requires the Court to “consider the amount of money at stake 20 in relation to the seriousness of defendant’s conduct.” Eitel, 782 F.2d at 1471. “This 21 requires that the court assess whether the recovery sought is proportional to the harm 22 caused by the defendant's conduct.” Landstar Ranger, Inc. v. Parth Enters., Inc., 725 F. 23 Supp. 2d 916, 921. (C.D. Cal. 2010). Here, Plaintiff seeks a judgment for restitution 24 damages in the amount of $2,836.91 and an award of punitive damages in the amount of 25 $2,500.00. Because Defendant did not engage in any illegal or harmful behavior, the Court 26 declines to award damages. This factor weighs against granting Plaintiff’s motion for 27 default judgment. 28 // 1 iv. Possibility of Dispute 2 The fifth Eitel factor considers the possibility of dispute as to any material facts in 3 the case. Because Plaintiff’s claim is meritless, there is a high possibility of dispute as to 4 any material facts. This factor weighs against granting Plaintiff’s motion for default 5 judgment. 6 v. Excusable Neglect 7 The fifth Eitel factor considers the possibility that Defendant’s default resulted from 8 excusable neglect. Plaintiff contends he properly served Defendant with notice. (ECF No. 9 9). Thus, accepting Plaintiff’s allegations as true, as the Court is required to do, the Court 10 finds this factor weighs in favor of granting Plaintiff’s motion for default judgment. See 11 TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (“Upon 12 default[,] the factual allegations of the complaint, except those relating to the amount of 13 damages, will be taken as true.”) 14 vi. Strong Policy Favoring Decisions on the Merits 15 The sixth Eitel factor considers the strong policy favoring cases to be decided on the 16 merits “whenever reasonably possible.” Eitel, 782 F. 2d at 1472. Given this strong policy 17 and the fact that the underlying claim lacks merit, this factor weighs against granting 18 Plaintiff’s motion for default judgment. 19 Ultimately, the Eitel factors weigh heavily against granting Plaintiff’s motion for 20 default judgment. Accordingly, the Court DENIES Plaintiff’s motion for default judgment 21 against Defendant By the Book, Attorney Services, Inc. 22 III. CONCLUSION AND ORDER 23 For the reasons discussed, the Court ORDERS the following: 24 • Defendant California Court Services, LLC, is DISMISSED without prejudice 25 pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 4(m). 26 • Defendant Golden State Attorney Service, Inc., is DISMISSED without prejudice 27 pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 4(m). 28 • Defendant Bosco Legal Services, LLC, is DISMISSED without prejudice pursuant l to Rule 4(m) of Federal Rules of Civil Procedure. Fed. R. Civ. P. 4(m). 2 e Plaintiff's motion for leave to file a second amended complaint is DENIED. 3 e Plaintiff's motion for default judgment against California Court Services, LLC is 4 DENIED. 5 e Plaintiff's motion for default judgment against By the Book Attorney Service, Inc. 6 is DENIED. 7 8 IT IS SO ORDERED. 9 10 || Dated: July 17, 2024 2» pv Yn - 12 Hon. Dana M. Sabraw, Chief Judge 13 United States District Court 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28