1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA
7 ALAN DECLUE, Case No. 20-cv-05808-PJH 8 Plaintiff,
9 v. ORDER DENYING MOTION FOR LEAVE TO AMEND AND ORDERING 10 FAMILY LAW SERVICES, et al., PLAINTIFF TO SHOW CAUSE 11 Defendants. Re: Dkt. No. 11, 47, 51, 60, 63, 66 12
13 Before the court is plaintiff Alan DeClue’s (“plaintiff”) motion for leave to amend his 14 complaint. Dkt. 63; Dkt. 66 (re-noticing motion for hearing). The matter is suitable for 15 decision without oral argument. Having read the parties’ papers and carefully considered 16 their arguments and the relevant legal authority, and good cause appearing, the court 17 DENIES the motion. Separately, for the reasons provided below, the court also 18 ORDERS plaintiff to show cause why his claims against the remaining defendants in this 19 action should not be dismissed for failure to timely effect service. 20 BACKGROUND 21 Plaintiff initiated the instant action on August 18, 2020. Dkt. 1 (Compl.). In it, 22 plaintiff alleges various claims under Title 42 U.S.C. § 1983 and state law. Id. All claims 23 arise out of a dispute between him and his former wife, defendant Valerie DeClue 24 (“Valerie”), concerning who is entitled to custody of their minor daughter. Id. 25 In his complaint, plaintiff named numerous public defendants, including the County 26 of Alameda (“Alameda County”), the Alameda County District Attorney’s Office (“D.A.’s 27 Office”), deputy district attorney Nancy O’Malley (“O’Malley”), the Alameda County 1 Clay”), as well as the City of Livermore (“Livermore”), Livermore Police Chief Michael 2 Harris (“Harris”), and Livermore Police Officer Paul Giacometti (“Officer Giacometti”) 3 (collectively, the “Public Defendants”). Plaintiff also names various other private 4 defendants, including Family Law Services, Inc. (“Family Law”), Terra Firma Diversion 5 Services (“Terra Firma”), and Terra Firma’s owner, Bertha Cuellar (“Cuellar”) (collective 6 with Valerie, the “Private Defendants”). 7 On October 30, 2020, the court dismissed all federal law claims against the Public 8 Defendants with prejudice on some combination of the following grounds: prosecutorial 9 immunity, sovereign immunity, judicial immunity, the Rooker-Feldman doctrine, the 10 statute of limitations, and failure to allege sufficient facts to state a claim. Dkt. 60 at 8-18. 11 The court then declined to exercise supplemental jurisdiction over their state law 12 counterparts and dismissed those claims without prejudice. Id. at 18-19. 13 On November 6, 2020, plaintiff filed an “objection” to the court’s October 30 order, 14 raising four disagreements. Plaintiff principally asserts that “defendants have knowingly 15 and willfully misled” the court and that they continue to engage in wrongful conduct. Dkt. 16 62 at 1-2. Plaintiff adds that the court “does not have the authority to dismiss” his claims, 17 is “practicing law from the bench citing argumentative case law benefiting defendants,” 18 and has a duty to give special treatment to self-represented litigants, including by not 19 holding them to the “same standard as trained BAR members.” Id. at 1. 20 In tandem with his objection, plaintiff filed the instant motion for leave to amend his 21 complaint. Dkt. 63. In it, plaintiff asks for leave to file a first-amended complaint to 22 “include facts from actions that occurred subsequent to the complaint that have relevance 23 to plaintiff’s claims for relief.” Id. at 1. From what the court can discern, such facts 24 involve some “unadjusted activity” pertaining to some “single point question” raised in two 25 October 2019 letters from plaintiff to the Superior Court. Id. at 1-5. Plaintiff attaches both 26 letters to his motion. Id. at 3-4. The letters, one dated October 7, 2019 and the other 27 dated October 17, 2019, are materially similar. Id. Both ask the following: enclosure indicate dishonest activity (uninsurable 1 activity/questionably insurable activity) pursuant to the insurance policy/ies you maintain? The damages exceed 2 $10,000. Id. 3 Based on the pages following these letters, it appears that the “enclosure” 4 referenced in plaintiff’s letter comprises a couple sets of minutes outlining some 2017 5 hearings before Judge Clay, a July 2017 order by Judge Clay, and an excerpt of the state 6 court docket. Id. at 6-13. In his motion, plaintiff states that he “will submit his first 7 amended complaint by Friday, November 20, 2020.” Id. at 2. To date, plaintiff has not 8 filed any amended pleading. 9 Before turning to its analysis, the court will address two threshold matters. First, it 10 is unclear whether plaintiff intended his November 6, 2020 filings to be a motion for 11 reconsideration pursuant to Local Rule 7-9 or a motion for leave to amend pursuant to 12 Federal Rule of Civil Procedure 15. Given that, the court will analyze plaintiff’s filings 13 under both frameworks. Second, the court need not and will not indulge plaintiff’s second 14 and third objections. With respect to his fourth objection, however, plaintiff should 15 understand that he—like all litigants before this court—will be held to the same standard. 16 A. The Court Will Not Reconsider Its October 30 Order 17 Local Rule 7-9 permits a party to request leave to file a motion for reconsideration 18 of an interlocutory (i.e., not-yet-appealable) order. Civ. L.R. 7-9(a). Pursuant to Local 19 Rule 7-9, the court may reconsider such an order only under certain circumstances. Civ. 20 L.R. 7-9(b). Relevant here, those circumstances require the discovery of a new fact other 21 than those presented to the court prior entry of the subject order, Civ. L.R. 7-9(b)(1), or 22 the development of a new fact occurring after such order, Civ. L.R. 7-9(b)(2). Separately, 23 Local Rule 7-9 expressly prohibits a party from repeating any argument previously raised 24 before entry of the subject order. Civ. L.R. 7-9(c). 25 To the extent plaintiff asks the court to reconsider its October 30 order, the court 26 declines for at least four reasons. First, as a procedural matter, plaintiff failed to obtain 27 leave of court before filing his motions. Civ. L.R. 7-9(a) (“No party may notice a motion 1 Second, in his November 6 filings, plaintiff fails to proffer any facts that he either 2 did not know prior to the October 30 order or that have occurred since that order. Plainly, 3 October 7, 2019 and October 17, 2019, which are the dates that plaintiff addressed the 4 subject letters to the Superior Court, occurred before October 30, 2020. 5 Third, even if the court were to consider the so-called “single point question” 6 mentioned in plaintiff’s October 7, 2019 and October 17, 2019 letter to the Superior 7 Court, that question would not alter the court’s justifications to dismiss the federal law 8 claims against the Superior Court and Judge Clay with prejudice. As detailed in the 9 October 30 order, the claims against those defendants were subject to dismissal on 10 grounds of judicial immunity and Rooker-Feldman abstention. DKt. 60 at 15-18. 11 Lastly, given that plaintiff did not address the October 2019 letters to the remaining 12 Public Defendants, such letters may not, in any event, serve as a basis for the claims 13 against those defendants. Thus, plaintiff failed to identify any factual basis for the court 14 to reconsider its decision to dismiss the Alameda County Defendants or the Livermore 15 Defendants. Given the above, the court denies any request by plaintiff to reconsider its 16 decision to dismiss the Public Defendants. 17 B. Plaintiff May Not Amend His Claims Against the Public Defendants 18 Under Rule 15, a party generally may amend its pleadings as a matter of course 19 within 21 days of their service. Fed. R. Civ.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA
7 ALAN DECLUE, Case No. 20-cv-05808-PJH 8 Plaintiff,
9 v. ORDER DENYING MOTION FOR LEAVE TO AMEND AND ORDERING 10 FAMILY LAW SERVICES, et al., PLAINTIFF TO SHOW CAUSE 11 Defendants. Re: Dkt. No. 11, 47, 51, 60, 63, 66 12
13 Before the court is plaintiff Alan DeClue’s (“plaintiff”) motion for leave to amend his 14 complaint. Dkt. 63; Dkt. 66 (re-noticing motion for hearing). The matter is suitable for 15 decision without oral argument. Having read the parties’ papers and carefully considered 16 their arguments and the relevant legal authority, and good cause appearing, the court 17 DENIES the motion. Separately, for the reasons provided below, the court also 18 ORDERS plaintiff to show cause why his claims against the remaining defendants in this 19 action should not be dismissed for failure to timely effect service. 20 BACKGROUND 21 Plaintiff initiated the instant action on August 18, 2020. Dkt. 1 (Compl.). In it, 22 plaintiff alleges various claims under Title 42 U.S.C. § 1983 and state law. Id. All claims 23 arise out of a dispute between him and his former wife, defendant Valerie DeClue 24 (“Valerie”), concerning who is entitled to custody of their minor daughter. Id. 25 In his complaint, plaintiff named numerous public defendants, including the County 26 of Alameda (“Alameda County”), the Alameda County District Attorney’s Office (“D.A.’s 27 Office”), deputy district attorney Nancy O’Malley (“O’Malley”), the Alameda County 1 Clay”), as well as the City of Livermore (“Livermore”), Livermore Police Chief Michael 2 Harris (“Harris”), and Livermore Police Officer Paul Giacometti (“Officer Giacometti”) 3 (collectively, the “Public Defendants”). Plaintiff also names various other private 4 defendants, including Family Law Services, Inc. (“Family Law”), Terra Firma Diversion 5 Services (“Terra Firma”), and Terra Firma’s owner, Bertha Cuellar (“Cuellar”) (collective 6 with Valerie, the “Private Defendants”). 7 On October 30, 2020, the court dismissed all federal law claims against the Public 8 Defendants with prejudice on some combination of the following grounds: prosecutorial 9 immunity, sovereign immunity, judicial immunity, the Rooker-Feldman doctrine, the 10 statute of limitations, and failure to allege sufficient facts to state a claim. Dkt. 60 at 8-18. 11 The court then declined to exercise supplemental jurisdiction over their state law 12 counterparts and dismissed those claims without prejudice. Id. at 18-19. 13 On November 6, 2020, plaintiff filed an “objection” to the court’s October 30 order, 14 raising four disagreements. Plaintiff principally asserts that “defendants have knowingly 15 and willfully misled” the court and that they continue to engage in wrongful conduct. Dkt. 16 62 at 1-2. Plaintiff adds that the court “does not have the authority to dismiss” his claims, 17 is “practicing law from the bench citing argumentative case law benefiting defendants,” 18 and has a duty to give special treatment to self-represented litigants, including by not 19 holding them to the “same standard as trained BAR members.” Id. at 1. 20 In tandem with his objection, plaintiff filed the instant motion for leave to amend his 21 complaint. Dkt. 63. In it, plaintiff asks for leave to file a first-amended complaint to 22 “include facts from actions that occurred subsequent to the complaint that have relevance 23 to plaintiff’s claims for relief.” Id. at 1. From what the court can discern, such facts 24 involve some “unadjusted activity” pertaining to some “single point question” raised in two 25 October 2019 letters from plaintiff to the Superior Court. Id. at 1-5. Plaintiff attaches both 26 letters to his motion. Id. at 3-4. The letters, one dated October 7, 2019 and the other 27 dated October 17, 2019, are materially similar. Id. Both ask the following: enclosure indicate dishonest activity (uninsurable 1 activity/questionably insurable activity) pursuant to the insurance policy/ies you maintain? The damages exceed 2 $10,000. Id. 3 Based on the pages following these letters, it appears that the “enclosure” 4 referenced in plaintiff’s letter comprises a couple sets of minutes outlining some 2017 5 hearings before Judge Clay, a July 2017 order by Judge Clay, and an excerpt of the state 6 court docket. Id. at 6-13. In his motion, plaintiff states that he “will submit his first 7 amended complaint by Friday, November 20, 2020.” Id. at 2. To date, plaintiff has not 8 filed any amended pleading. 9 Before turning to its analysis, the court will address two threshold matters. First, it 10 is unclear whether plaintiff intended his November 6, 2020 filings to be a motion for 11 reconsideration pursuant to Local Rule 7-9 or a motion for leave to amend pursuant to 12 Federal Rule of Civil Procedure 15. Given that, the court will analyze plaintiff’s filings 13 under both frameworks. Second, the court need not and will not indulge plaintiff’s second 14 and third objections. With respect to his fourth objection, however, plaintiff should 15 understand that he—like all litigants before this court—will be held to the same standard. 16 A. The Court Will Not Reconsider Its October 30 Order 17 Local Rule 7-9 permits a party to request leave to file a motion for reconsideration 18 of an interlocutory (i.e., not-yet-appealable) order. Civ. L.R. 7-9(a). Pursuant to Local 19 Rule 7-9, the court may reconsider such an order only under certain circumstances. Civ. 20 L.R. 7-9(b). Relevant here, those circumstances require the discovery of a new fact other 21 than those presented to the court prior entry of the subject order, Civ. L.R. 7-9(b)(1), or 22 the development of a new fact occurring after such order, Civ. L.R. 7-9(b)(2). Separately, 23 Local Rule 7-9 expressly prohibits a party from repeating any argument previously raised 24 before entry of the subject order. Civ. L.R. 7-9(c). 25 To the extent plaintiff asks the court to reconsider its October 30 order, the court 26 declines for at least four reasons. First, as a procedural matter, plaintiff failed to obtain 27 leave of court before filing his motions. Civ. L.R. 7-9(a) (“No party may notice a motion 1 Second, in his November 6 filings, plaintiff fails to proffer any facts that he either 2 did not know prior to the October 30 order or that have occurred since that order. Plainly, 3 October 7, 2019 and October 17, 2019, which are the dates that plaintiff addressed the 4 subject letters to the Superior Court, occurred before October 30, 2020. 5 Third, even if the court were to consider the so-called “single point question” 6 mentioned in plaintiff’s October 7, 2019 and October 17, 2019 letter to the Superior 7 Court, that question would not alter the court’s justifications to dismiss the federal law 8 claims against the Superior Court and Judge Clay with prejudice. As detailed in the 9 October 30 order, the claims against those defendants were subject to dismissal on 10 grounds of judicial immunity and Rooker-Feldman abstention. DKt. 60 at 15-18. 11 Lastly, given that plaintiff did not address the October 2019 letters to the remaining 12 Public Defendants, such letters may not, in any event, serve as a basis for the claims 13 against those defendants. Thus, plaintiff failed to identify any factual basis for the court 14 to reconsider its decision to dismiss the Alameda County Defendants or the Livermore 15 Defendants. Given the above, the court denies any request by plaintiff to reconsider its 16 decision to dismiss the Public Defendants. 17 B. Plaintiff May Not Amend His Claims Against the Public Defendants 18 Under Rule 15, a party generally may amend its pleadings as a matter of course 19 within 21 days of their service. Fed. R. Civ. Pro. 15(a)(1). After that, a party may amend 20 its pleadings only if it obtains the opposing party’s written consent or leave of court. Fed. 21 R. Civ. Pro. 15(a)(2). In the latter scenario, courts “should freely give leave when justice 22 so requires.” Id. When deciding whether to grant leave, courts consider various factors, 23 including, in relevant part, futility of amendment. In re W. States Wholesale Nat. Gas 24 Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013). 25 For at least two reasons, the court denies plaintiff’s motion for leave to amend his 26 complaint. First, to the extent plaintiff seeks to amend his claims against any of the 27 Public Defendants, such an amendment would be futile. Again, as detailed in the court’s 1 grounds of various immunity and jurisdictional doctrines, as well as the statute of 2 limitations. Dkt. 60 at 8-18. Those rationales are legal in nature. Thus, any additional 3 factual allegations proffered in support of those claims would not alter the court’s decision 4 to dismiss them. 5 Second, even if the court were to consider the October 2019 letters’ “single point 6 question,” such question relates to only the Superior Court and Judge Clay. It does not 7 appear to bear any relation to the Private Defendants, who are the only defendants 8 remaining in this action. Given the above, the court denies plaintiff’s motion for leave to 9 amend his complaint. Dkt. 63; Dkt. 66. 10 C. The Court Orders Plaintiff to Show Cause Why the Court Should Not Dismiss 11 His Claims Against the Private Defendants 12 Rule 4(m) requires a plaintiff to serve all defendants in an action within 90 days of 13 its filing. Fed. R. Civ. Pro. 4(m). If a plaintiff fails to do so, the court “must dismiss the 14 action without prejudice against [an unserved] defendant or order that service be made 15 within a specified time.” Id. The court must extend the time for service if plaintiff shows 16 good cause for the failure to serve. Id. 17 Plaintiff filed this action on August 18, 2020. Thus, he was required to serve all 18 defendants in it by November 16, 2020. On September 23, 2020, the clerk of court 19 declined to enter default against Valerie, Family Law, and Terra Firma. Dkt. 47. To 20 support that decision, it explained that plaintiff (1) only mailed but did not serve the 21 complaint on Valerie and Family Law and (2) omitted which qualifying agent at Terra Firm 22 was served. Id. 23 To date, plaintiff has not filed an executed summons showing that he cured the 24 service deficiencies identified by the clerk with respect to these three Private Defendants. 25 Indeed, he failed to even respond to the clerk’s rejection of his “proofs of service” for 26 these defendants. Given these failures, the court orders plaintiff to show cause why his 27 claims against Valerie, Family Law, and Terra Firma should not be dismissed for failure 1 for failing to comply with Rule 4(m), the court will nonetheless extend time for him to 2 effect service. Thus, as an alternative to responding to the court’s order to show cause, 3 plaintiff may properly serve Valerie, Family Law, and Terra Firma and then file an 4 amended proof for each defendant showing such service. 5 To the extent plaintiff suggests that General Order No. 75 permits him to serve by 6 certified mail, see Dkt. 11-2 at 2; Dkt. 11-5 at 2, he is mistaken. By its terms, that order 7 applies to only service of process performed by the United States Marshals Service 8 assigned to this district. If plaintiff needs assistance understanding the service of process 9 requirements, the court directs his attention to the Legal Help Desk. 10 https://cand.uscourts.gov/about/court-programs/legal-help-desks/. In any event, the court 11 reminds plaintiff that he himself may not attempt to serve defendants. Fed. R. Civ. Pro. 12 4(c)(2) (“Any person who is at least 18 years old and not a party may serve a summons 13 and complaint.”) (emphasis added). 14 That leaves only Cuellar. The circumstances surrounding her purported service 15 are more complicated. On August 18, 2020, the clerk issued separate summonses for 16 Terra Firma and Cuellar. Dkt. 5 at 2. That decision makes sense given that plaintiff 17 names both Terra Firma as an entity and Cuellar in her personal capacity, not just as an 18 agent of Terra Firma. Compl. ¶¶ 16, 17. Both summonses were issued for the same 19 address—namely, 30086 Mission Blvd., Hayward, California 94544. Dkt. 5 at 2. 20 However, plaintiff returned only a single proof purporting to show service on both 21 of these separate defendants. Dkt. 11-4 at 2 (“This summons for . . . Terra Firma and 22 Bertha Cuellar was received by me on August 24, 2020 . . . I personally served the 23 summons on the individual at . . . 30086 Mission Blvd., Hayward, CA 94544 on August 24 26, 2020 . . .”) (emphasis added). Thus, it is unclear to the court whether plaintiff 25 personally served Cuellar herself or some other unspecified Terra Firma agent (with 26 Cuellar’s papers) at the subject address on August 26, 2020. Given that ambiguity, the 27 court orders plaintiff to file a proof showing service on Cuellar in particular. In the event 1 In that event, he must either properly serve Cuellar and file an amended proof or 2 otherwise explain why his claims against her should not be dismissed for failure to timely 3 and properly serve her. 4 Lastly, the court understands that the clerk entered default against Cuellar on 5 September 23, 2020. Dkt. 46. On October 2, 2020, the clerk withdrew that entry, 6 explaining that plaintiff failed to provide documents showing a sum certain amount. Dkt. 7 51. To date, plaintiff has not attempted to cure that failure. In the event plaintiff properly 8 served Cuellar, he must promptly provide the subject documents. 9 CONCLUSION 10 For the above reasons, the court DENIES plaintiff’s motion for leave to amend his 11 complaint. Dkt. 63. Separately, the court orders plaintiff to file a response to its order to 12 show cause by Friday, January 15, 2021. Given that the court has sua sponte extended 13 time for plaintiff to properly serve the Private Defendants, he may, in the alternative, file 14 amended proofs of service showing proper service on each of the Private Defendants. 15 Again, the court will permit him until Friday, January 15, 2021 to file such amended 16 proofs. If plaintiff fails to timely take either course of action, the court will dismiss the 17 remainder of this case with prejudice under Rule 41(b) for failure to prosecute. 18 IT IS SO ORDERED. 19 Dated: December 30, 2020 20 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 21 United States District Judge
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