Armour v. Housing Authority

• Court: District Court, S.D. California
• Decided: January 13, 2025
• Docket: 3:23-cv-00808
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 OLIVIA ARMOUR, Case No.: 23-cv-808-WQH-KSC

13 Plaintiff, ORDER 14 v. 15 HOUSING AUTHORITY; PSE&G COMPANY; US 16 COPYRIGHTS OFFICE; US 17 PATENT OFFICE; FEDERAL BUREAU OF INV. (FBI); 18 THOMAS VENA; SUSAN F. 19 MAVEN; JOSE LINARES; DOUGLAS FASCIALE; and 20 VERIZON PHONE COMPANY, 21 Defendants. 22 HAYES, Judge: 23 The matters before the Court are the Motion for Leave to Amend the Complaint (ECF 24 No. 41), Motion for Leave to Amend the Complaint, Correction (ECF No. 42), Motion for 25 Entry Into Default (ECF No. 43), and the Motion for Courts to Request the HCVP 26 Voluntary Withdrawal Declaration Form From Housing Authority (ECF No. 44) filed by 27 Plaintiff Olivia Armour (“Plaintiff”). 28 1 I. BACKGROUND 2 On December 5, 2022, Plaintiff, proceeding pro se, initiated this action by filing a 3 Complaint in the Superior Court of California, County of San Diego (Case No. 37-2022- 4 00048798-CU-PT-CTL) against the U.S. Copyright Office, the U.S. Patent and Trademark 5 Office, and the Federal Bureau of Investigation (collectively, “the Federal Defendants”), 6 Hon. Douglas Fasciale, Hon. Thomas Vena, and Hon. Susan Maven (collectively, “the 7 Judiciary Defendants”), Newark Housing Authority, Public Service Enterprise Group 8 (“PSE&G”), and Verizon Communications Inc. (“Verizon”). (ECF No. 1-2 at 29–34.) On 9 May 3, 2023, the Federal Defendants removed the action to this Court pursuant to 28 10 U.S.C. § 1442(a)(1), which allows the removal of actions against “[t]he United States or 11 any agency thereof.” (ECF No. 1.) 12 On June 30, 2023, the Federal Defendants filed a Motion to Dismiss Plaintiff’s 13 Complaint. (ECF No. 7.) On July 19, 2023, the Judiciary Defendants filed a Motion to 14 Dismiss Plaintiff’s Complaint. (ECF No. 9.) 15 On February 28, 2024, the Court issued an Order (the “February 28th Order”) (ECF 16 No. 24) dismissing the claims against the Federal and Judiciary Defendants without 17 prejudice and providing Plaintiff with notice that the Court would dismiss Plaintiff’s claims 18 against the remaining defendants—the Newark Housing Authority, PSE&G, and 19 Verizon—without prejudice unless Plaintiff provided proof that service of the summons 20 and Complaint was effectuated or was otherwise not required. (ECF No. 24 at 15.) The 21 Court granted Plaintiff fourteen days to file a motion for leave to amend the Complaint, 22 accompanied by a proposed amended complaint addressing the deficiencies identified in 23 the February 28th Order. Id. 24 25 On March 11, 2024, Plaintiff filed a Motion for Leave to Amend 26 Complaint/Corrections of Deficiencies/Motion for Written Discovery. (ECF No. 25.) 27 28 1 On March 13, 2024, Plaintiff filed a Motion for Leave to Amend Complaint Repair 2 Deficiencies/Motion to Serve Defendants via Email/Motion for Waiver of Sovereign 3 Immunity Motion for Written Discovery. (ECF No. 26.) 4 On March 27, 2024, Plaintiff filed a Motion for a Leave to Amend Complaint Repair 5 Deficiencies/Motion to Serve Defendants via Email/Motion for Waiver of Sovereign 6 Immunity/Motion for Entry into Default Motion for Written Discovery. (ECF No. 28.) 7 On June 11, 2024, the Court issued an Order (the “June 11th Order”) (ECF No. 29) 8 dismissing Plaintiff’s claims against Defendants Newark Housing Authority, PSE&G, and 9 Verizon without prejudice for failure to properly effectuate service. Id. at 5. The Court 10 additionally denied Plaintiff’s Motion for Leave to Amend Complaint/Corrections of 11 Deficiencies/Motion for Written Discovery (ECF No. 25), Motion for Leave to Amend 12 Complaint Repair Deficiencies/Motion to Serve Defendants via Email/Motion for Waiver 13 of Sovereign Immunity Motion for Written Discovery (ECF No. 26), and Motion for a 14 Leave to Amend Complaint Repair Deficiencies/Motion to Serve Defendants via 15 Email/Motion for Waiver of Sovereign Immunity/Motion for Entry into Default Motion 16 for Written Discovery (ECF No. 28) without prejudice for—among other reasons—failure 17 to comply with the February 28th Order by filing a copy of the proposed amended 18 complaint and identifying how it differed from the operative Complaint. (See ECF No. 29 19 at 5–7.) The Court granted Plaintiff twenty-one (21) days to file a motion for leave to 20 amend the Complaint, accompanied by a proposed amended complaint addressing the 21 deficiencies identified in the February 28th Order and stating an adequate basis for federal 22 subject matter jurisdiction. Id. at 7. 23 Plaintiff subsequently filed three motions: 24 25 1. On July 1, 2024, Plaintiff filed a Motion for Leave to Amend Complaint/Motion 26 for Default Against Remaining Defendants/Motion for a Fair Hearing. (ECF No. 27 30.) On July 15, 2024, the Federal Defendants filed the Response in Opposition 28 to Plaintiff’s Motion for Leave to Amend the Complaint. (ECF No. 32.) 1 2. On August 27, 2024, Plaintiff filed a Motion Against the Defendants in 2 Default/To Respond to the Defendants’ Attorney/Motion for a Court Ordered 3 X-Ray/OBGYN/Motion for a Fair Hearing. (ECF No. 36.) In this Motion, 4 Plaintiff provided the Court with a new mailing address. Id. 5 3. On September 13, 2024, Plaintiff filed a Motion Against Federal Defendants’ 6 Attorney Response Should Be Stricken/Defendants Are in Default/ Motion for a 7 Court Ordered X-Ray/OBGYN/Motion for a Fair Hearing. (ECF No. 37.) 8 These Motions did not address the deficiencies discussed in the June 11th Order. 9 However, on July 14, 2024 and August 22, 2024, the Court received notice that Plaintiff’s 10 mail had been returned as undeliverable. (ECF Nos. 34, 35.) 11 On September 24, 2024, the Court ordered the Clerk of the Court to mail the 12 undelivered filings to Plaintiff’s current address and granted Plaintiff additional time to 13 respond appropriately to the June 11th Order. (ECF No. 38.) The Court stated that “[a]ny 14 motion for leave to amend must be accompanied by a proposed amended complaint, which 15 must address the deficiencies discussed in the June 11th Order” and “must also state an 16 adequate basis for federal subject matter jurisdiction over Plaintiff’s claims.” Id. at 4. 17 On November 20, 2024, Plaintiff filed the Motion for Leave to Amend the 18 Complaint (the “November Motion for Leave to Amend”). (ECF No. 41.) 19 On December 26, 2024, Plaintiff filed the Motion for Leave to Amend the 20 Complaint, Correction (the “December Motion for Leave to Amend”). (ECF No. 42.) The 21 December Motion for Leave to Amend appears to have been filed to correct the caption in 22 the November Motion for Leave to Amend by removing the Federal and Judiciary 23 Defendants, and adding individual defendants related to the Newark Housing Authority, 24 PSE&G, and Verizon. (See ECF No. 42-3 at 2.) Additionally, attached to the December 25 Motion for Leave to Amend is a Declaration of Service indicating that the Newark Housing 26 Authority, PSE&G, and Verizon were “served” via certified mail. (See ECF Nos. 42-5 & 27 42-6.) 28 1 On December 27, 2024, Plaintiff filed the Motion for Entry Into Default (the 2 “Motion for Default”). (ECF No. 43.) 3 On January 6, 2025, Plaintiff filed the Motion for Courts to Request the HCVP 4 Voluntary Withdrawal Declaration Form From Housing Authority (the “Motion for 5 Withdrawal Declaration Form”). (ECF No. 44.) 6 II. DISCUSSION 7 Plaintiff has not filed proof that service was properly or timely effectuated against 8 the Newark Housing Authority, PSE&G, or Verizon. Although Plaintiff attached a 9 Declaration of Service to the December Motion for Leave to Amend indicating that the 10 Newark Housing Authority, PSE&G, and Verizon were “served” via certified mail (see 11 ECF Nos. 42-5 & 42-6), this is not valid evidence that service has been properly 12 effectuated. The Declaration of Service is not signed by the individual who served the 13 documents, and the documents that were served are not described. Therefore, the Court 14 cannot determine whether service of the summons and the Complaint has been properly 15 effectuated under federal law. 16 Furthermore, even if the Court found that Plaintiff had properly effectuated service 17 via certified mail on November 25, 2024, Rule 4(m) of the Federal Rules of Civil Procedure 18 provides: 19 [i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the 20 action without prejudice against that defendant or order that service be made 21 within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 22 23 Plaintiff’s deadline to effect service on all Defendants was August 1, 2023. See ECF No. 24 1; Whidbee v. Pierce, 857 F.3d 1019, 1023 (9th Cir. 2017) (“[O]nce a case is removed to 25 federal court, a plaintiff has a specified number of days [under Federal Rule of Civil 26 Procedure 4(m)] to effect service of process on all defendants.”). It has been nearly a year 27 and a half since the deadline for Plaintiff to effect service passed and Plaintiff has not 28 1 shown good cause or other grounds warranting an extension of time to execute service on 2 the Newark Housing Authority, PSE&G, and Verizon. 3 For these reasons, the Court also finds that Plaintiff’s Motion for Default (ECF No. 4 43) should be denied. Entry of default can only be effectuated if the Court has jurisdiction 5 over a defendant. However, “[a] federal court does not have jurisdiction over a defendant 6 unless the defendant has been served properly under Fed.R.Civ.P. 4.” Direct Mail 7 Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988); see 8 also Patrick v. Saxon Mortg., Inc., 456 F. App’x 697, 698 (9th Cir. 2011) (finding that 9 “[t]he district court did not abuse its discretion by denying [Plaintiff’s] motion for default 10 judgment because [Plaintiff] never properly served the summons and complaint on 11 defendant”). 12 Additionally, the November and December Motions for Leave to Amend fail to 13 address the deficiencies identified in the Court’s prior Orders and do not provide a 14 sufficient basis to establish federal subject matter jurisdiction. (See generally ECF Nos. 41 15 & 42.) Both the November and December Motions for Leave to Amend cite numerous 16 statutes in Title 18 of the United States Code. (See ECF No. 41 at 4–8; ECF No. 42 at 4– 17 8.) However, the laws in Title 18 are criminal laws enforced by federal agencies with law 18 enforcement authority and the November and December Motions for Leave to Amend fail 19 to cite a legal basis for Plaintiff to possess a private right of action under these statutes. See 20 Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (finding that there is 21 no private right of action for violation of criminal statutes). Although the November and 22 December Motions for Leave to Amend contain a brief reference to the First, Fourth, and 23 Fourteenth Amendments to the United States Constitution (see ECF No. 41 at 8; ECF No. 24 42 at 8), both motions fail to state a plausible basis for how these provisions were allegedly 25 violated. (ECF No. 41 at 8; ECF No. 42 at 8; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 26 (2009) (holding that Federal Rule of Civil Procedure 8, “demands more than an unadorned, 27 the defendant-unlawfully-harmed-me accusation”).) 28 1 Lastly, the Court notes that Plaintiff’s Motion for Withdrawal Declaration Form 2 (ECF No. 44), which the Court interprets as a request for the Court to facilitate the 3 procurement of an “HCVP Voluntary Withdrawal Declaration” Form from the Newark 4 Housing Authority (see ECF No. 44 at 2), falls outside the jurisdictional authority of the 5 Court. As such, the Court denies Plaintiff’s Motion for Withdrawal Declaration Form. 6 The Court has provided Plaintiff the opportunity to amend her complaint three times 7 to no avail. (See ECF Nos. 24, 29 & 38.) Plaintiff has not shown any legal basis for her 8 claims and Plaintiff’s motions to amend the complaint have failed to address the 9 deficiencies highlighted by the Court in the February 28th and June 11th Orders. (See ECF 10 Nos. 24 & 29.) 11 The Court finds that granting Plaintiff further leave to amend would be futile. Zucco 12 Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“A district court … 13 may in its discretion deny leave to amend due to… repeated failure to cure deficiencies by 14 amendments previously allowed… [or] futility of amendment.” (internal quotation marks 15 omitted)); Finley v. Williams, No. 2:21-CV-06277-RGK-PD, 2022 WL 2036309, at *3 16 (C.D. Cal. Jan. 24, 2022) (denying Plaintiff’s motion to amend the complaint for her 17 “repeated failure to cure deficiencies”); see Schmier v. U.S. Ct. Appeals for Ninth Cir., 279 18 F.3d 817, 824 (9th Cir. 2002) (recognizing that “[f]utility of amendment” is a proper basis 19 for dismissal without leave to amend). 20 III. CONCLUSION 21 Because Plaintiff’s November and December Motions for Leave to Amend (ECF 22 Nos. 41 & 42) fail to correct the deficiencies in the Complaint that this Court has identified 23 or state an adequate basis for subject matter jurisdiction, IT IS HEREBY ORDERED that 24 Plaintiff’s November and December Motions for Leave to Amend (ECF Nos. 41 & 42) are 25 denied. 26 IT IS FURTHER ORDERED that Plaintiff’s Motion for Default (ECF No. 43) is 27 denied because Plaintiff never properly served the summons and Complaint on the Newark 28 Housing Authority, PSE&G, or Verizon. 1 IT IS FURTHER ORDERED that Plaintiff's Motion for Withdrawal Declaration 2 ||Form (ECF No. 44) is denied because it requests relief that is outside the purview of the 3 || courts. 4 IT IS FURTHER ORDERED that, because Plaintiff has repeatedly failed to file 5 || proof that service was properly and timely effectuated on the Newark Housing Authority, 6 || PSE&G, or Verizon, Plaintiff's Complaint (ECF No. 1-2 at 29-34) is dismissed without 7 || prejudice and without leave to amend. The Clerk of the Court shall enter judgment in favor 8 || of all defendants and close this case. 9 10 Dated: January 13, 2025 4 Lttn~ Z. Maa 1 Hon. William Q. Hayes United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28