Larkin v. Cabraser

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BILLY F. LARKIN, Case No. 24-cv-00190-HSG

8 Plaintiff, ORDER ADDRESSING PENDING MOTIONS; REQUIRING PLAINTIFF 9 v. TO EFFECT SERVICE

10 ELIZABETH J. CABRASER, et al., Re: Dkt. Nos. 9, 15, 19, 21, 22 11 Defendants.

12 13 Plaintiff, an inmate housed at Nash Correctional Institution in Nashville, North Carolina, 14 has filed this pro se action. For the reasons set forth below, the Court DENIES as moot Plaintiff’s 15 request for leave to proceed in forma pauperis, Dkt. No. 9; DENIES as moot Plaintiff’s request to 16 reopen this action, Dkt. No. 15; DENIES Plaintiff’s motion to stay the proceedings and for the 17 United States Marshal to effect service, Dkt. No. 19; GRANTS Plaintiff’s request for an extension 18 of time to effect service, Dkt. No. 19; DENIES Plaintiff’s request that service requirement be 19 waived and that the summons and complaint be issued electronically to Defendants, Dkt. No. 21; 20 DENIES Plaintiff’s request for class certification, Dkt. No. 22; and ORDERS Plaintiff to effect 21 service by September 30, 2024. 22 DISCUSSION 23 I. Procedural History 24 Plaintiff filed this action on or about January 10, 2024. Dkt. No. 1. That same day, the 25 Court sent Plaintiff a notice that the action was deficient because he had not paid the filing fee or 26 filed an application for leave to proceed in forma pauperis. Dkt. No. 2. The Court informed 27 Plaintiff that he should correct this deficiency by February 7, 2024, or the action would be 1 February 26, 2024, the Court dismissed this action and entered judgment against Plaintiff because 2 Plaintiff had neither paid the filing fee nor submitted a complete in forma pauperis application. 3 Dkt. Nos. 7, 8. 4 On March 12, 2024, after receiving an incomplete in forma pauperis application from 5 Plaintiff, Dkt. No. 9, along with what the Court construed as a request to excuse the failure to 6 submit the required supporting documents, Dkt. No. 10, the Court reopened this action, deemed 7 Plaintiff’s in forma pauperis application (Dkt. No. 9) complete, and ordered Plaintiff to show 8 cause why his request to proceed in forma pauperis should not be denied pursuant to 28 U.S.C. § 9 1915(g). Dkt. No. 13. In this same order, the Court denied as premature Plaintiff’s request that 10 the United States Marshal effect service on Defendants, stating that the Court would order the 11 United States Marshal to effect service if Plaintiff were granted leave to proceed in forma pauperis 12 and the Court found that the complaint stated cognizable claims. Id. 13 On March 25, 2024, Plaintiff filed a motion to reopen the action, based on payment of the 14 filing fee. Dkt. No. 15. On March 26, 2024, the Court received Plaintiff’s filing fee. Dkt. No. 16. 15 On March 27, 2024, Plaintiff filed a response to the Court’s March 12, 2024 Order to Show Cause. 16 Dkt. No. 17. 17 On April 11, 2024, Plaintiff filed a motion requesting that the Court stay these 18 proceedings, that the Court extend his time to effect service, and that the Court order the United 19 States Marshal to effect service on his behalf. Dkt. No. 19. 20 II. Complaint 21 The complaint names as defendants approximately 22 attorneys and their law firms, as 22 well as John Doe attorneys and their law firms. The complaint alleges that Defendants were 23 involved in the Deepwater Horizon Economic and Property Settlement, and that Defendants 24 engaged in fraud and legal malpractice and breached the settlement agreement, resulting in 25 termination of Plaintiff’s settlement recovery claim. Specifically, Plaintiff alleges that Defendants 26 crated a settlement framework that fraudulently concealed his claim number and failed to establish 27 specific procedures to notify authorized business representatives and current right holders, 1 Plaintiff alleges that he did not learn of the claims raised in this action until March 2023, when 2 Nash Correctional Institution provided him with a tablet that allowed him to conduct legal 3 research, which revealed to him that Defendants’ fraudulent and illegal acts had caused the 4 wrongful termination of his recovery claim. See generally Dkt. No. 1.

5 III. C No. 19-10295, In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (“Larkin I”) 6 7 On May 7, 2019, Plaintiff filed a complaint in the Eastern District of Louisiana, on behalf 8 of himself and Hotel Security Specialists, LLP, a business he allegedly owned and operated. 9 C No. 19-10295, In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on 10 April 20, 2010 (E.D.La.) (“Larkin I”), Dkt. No. 1. The complaint named as defendants Patrick 11 Juneau, the claims administrator for the BP Exploration and Production, Inc., and BP American 12 Production Company over the Deepwater Horizon Oil Spill. The complaint alleged that Mr. 13 Juneau had displayed gross negligence in sending the denials of Plaintiff’s claims to the address 14 listed on the application, instead of to the prisons where Plaintiff was incarcerated at the time. Id. 15 On December 16, 2020, Plaintiff’s claims were rejected on the merits in a reasoned order, and the 16 action was dismissed both as frivolous and for failure to state a claim, within the meaning of 28 17 U.S.C. § 1915(e)(2)(B). Larkin I, Dkt. No. 19.

18 IV. Denying as Moot Request to Proceed In Forma Pauperis (Dkt. No. 9) and Request to Reopen (Dkt. No. 15) 19 20 Plaintiff has filed a request to proceed in forma pauperis, Dkt. No. 9, and a request to 21 reopen this action, Dkt. No. 15. The Court DENIES these motions as moot. Plaintiff has paid the 22 filing fee, and the Court reopened this action on March 12, 2024.

23 V. Request to Stay Action, Extend Time for Service, and Order United States Marshal to Effect Service (Dkt. No. 19); and Request for Waiver of Service Requirement and 24 that Summons and Complaint Be Issued Electronically on Defendants (Dkt. No. 21)

25 Plaintiff has requested that the Court stay this action; extend the time for service “for an 26 appropriate period,” and order the United States Marshal to effect service on his behalf. Plaintiff 27 states that timely service is impossible due to his incarceration “and beyond Plaintiff’s control.” 1 Dkt. No. 19. Plaintiff has also requested that the Court waive the service requirement, issue the 2 summons and complaints electronically to Defendants via the Court’s Electronic Filing System, 3 and find that the electronic transmission constitutes service. Dkt. No. 21. 4 Request to Extend Time to Effect Service (Dkt. No. 19). The Court GRANTS 5 Plaintiff’s request to extend the time to effect service. Fed. R. Civ. P. 4(m) provides that if service 6 of the summons and complaint is not made upon a defendant in 90 days after the filing of the 7 complaint, the action must be dismissed without prejudice as to that defendant absent a showing of 8 “good cause.” Fed. R. Civ. P. 4(m). Because this action was reopened on March 12, 2024, the 90- 9 day deadline for effecting service was June 10, 2024. In the interests of justice, the Court 10 GRANTS an extension of time to September 30, 2024 to effect service. Failure to effect service 11 by September 30, 2024, will result in dismissal of this action pursuant to Fed. R. Civ. P. 4(m) 12 without further notice to Plaintiff unless he can demonstrate good cause for the failure to serve. 13 Plaintiff’s incarceration, by itself, is insufficient to constitute good cause because California law 14 provide for alternatives to personal service. 15 Request that United States Marshal Effect Service (Dkt. No. 19). The Court DENIES 16 Plaintiff’s request that the Court order the United States Marshal to effect service. District judges 17 have no obligation to act as counsel or paralegal to pro se litigants. Pliler v. Ford, 542 U.S. 225, 18 231 (2004). “He who proceeds pro se with full knowledge and understanding of the risks does so 19 with no greater rights than a litigant represented by a lawyer, and the trial court is under no 20 obligation to become an ‘advocate’ for or to assist and guide the pro se layman through the trial 21 thicket.” Jacobsen v. Filler, 790 F.2d 1362, 1365 (9th Cir. 1986). The Court declines to expend 22 the resources of the United States Marshal in serving over 40 defendants throughout the United 23 States as this action appears to be frivolous as a matter of law for the following reasons. First, this 24 case appears to be duplicative of Larkin I. Second, this case appears to be improperly filed in this 25 Court because it involves a dispute arising out of, or related to, the interpretation, enforcement, or 26 implementation of the Deepwater Horizon Economic and Property Damages Settlement 27 Agreement (“Settlement”) and the Settlement provides that the Eastern District of Louisiana 1 Settlement Agreement, in accordance with its terms, and to implement and complete the claims 2 administration and distribution process.” C No. 2:10-md-02179-CJB-DPC, In re: Oil Spill by the 3 Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, Dkt. No. 8139 (Dec. 21, 4 2012). Third, it is unclear how Plaintiff can bring California state-law claims against the non- 5 California defendants, as there is no allegation that the non-California defendants were operating 6 in the State of California with respect to the relevant incidents. Fourth, this action appears to be 7 untimely. In California, there is a three-year statute of limitations for bringing fraud claims, and a 8 one-year statute of limitations for bringing a legal malpractice claim. See Cal. Civ. Proc. § 338(d) 9 (fraud claims); Cal. Civ. Proc. § 340.6 (legal malpractice). Plaintiff’s claim that he only learned of 10 Defendants’ involvement in crafting the claims recovery process in March 2023 when he obtained 11 access to a tablet that allowed him to conduct legal research is dubious at best. Plaintiff is a 12 frequent litigant, and has filed at least five actions or appeals in federal court since 2014. See, e.g., 13 C No. 5:2014-ct-03056, Larkin v. Wrightsville Police Department et al. (E.D.N.C.); C No. 5:2016- 14 ct-03230, Larkin v. Kelly et al. (E.D.N.C.); C No. 5:2019-ct-03047, Larkin v. Carolina Beach 15 Police Dep’t. et al. (E.D.N.C.); C No. 2:2019-cv-10295, Larkin et al v. Juneau et al. (E.D.La.); C 16 No. 1:2019-cv-01638, Larkin v. Adair, et al. (D.D.C.); C No. 21-cv-30381, Larkin v. Juneau, et al. 17 (5th Cir.); C No. 23-cv-30071, In re Larkin (5th Cir.). It seems unlikely that Plaintiff was unable 18 to conduct legal research previously or was unaware of the possibility that the named defendants, 19 who appear to be members of the Plaintiffs’ Steering Committee in the Deepwater Horizon 20 Settlement, were involved in designing the claims process. While the Court is sensitive to the 21 limitations posed by Plaintiff’s incarceration, California law allows for service by methods other 22 than personal service, and Plaintiff may be able to effect service via these methods despite the 23 limitations of incarceration. See, e.g., Cal. Civ. Proc. §§ 415.20 (leaving copy of summons and 24 complaint at office, dwelling house, usual place of abode or business, or usual mailing address; 25 mailing copy); 415.30 (service by mail). 26 Request to Stay Action (Dkt. No. 19). The Court DENIES Plaintiff’s request to stay this 27 action. Plaintiff has not explained why a stay is needed. To the extent that Plaintiff is seeking to 1 timely prosecute this action, including effecting service. Moreover, the Court has granted Plaintiff 2 an extension of time to effect service. 3 Request for Waiver of Service Requirement and Electronic Issuance of the Summons 4 and Complaint (Dkt. No. 21). The Court DENIES Plaintiff’s request that the Court waive the 5 service requirement, issue the summons and complaints electronically to Defendants via the 6 Court’s Electronic Filing System, and find that the electronic transmission constitutes service. 7 Dkt. No. 21. Plaintiff argues that the complexity of this action and his incarceration requires that 8 procedural rules “give way,” and requests “a one-time courtesy, a waiver of constitutional service, 9 via the Court’s electronic filing system, or in other electronic form.” Dkt. No. 21. “‘Ninth Circuit 10 law dictates that alternative means of service are permissible pursuant to Rule 4(e)(1) and Cal. 11 Civ. Proc. Code § 413.30 when plaintiffs’ reasonable attempts to effect service via expressly 12 sanctioned techniques have failed.” Morton v. Twitter, Inc., C No. CV 21-7145-GW-JEMX, 2022 13 WL 19569525, at *1 (C.D. Cal. Dec. 20, 2022) (citing Creative Intellects v. Haygood, C No. 2:21- 14 cv-02670-RGK-AFM, 2021 WL 3568237, at *2 (C.D. Cal. July 23, 2021)).1 Here, Plaintiff has 15 not yet made any attempts to effect service, and there is no indication that such efforts will be 16 unsuccessful. 17 VI. Request to Proceed as Class Action (Dkt. No. 22) 18 Plaintiff argues that “[t]his action is appropriate as a class action pursuant to Rule 23(c)(1) 19 of the Federal Rules of Civil Procedure” and requests that the Court enter an order determining 20 that this action may be maintained as a class action. Dkt. No. 22. The Court DENIES Plaintiff’s 21 request to maintain a class action because pro se prisoner plaintiffs are not adequate class 22 representatives able to fairly represent and adequately protect the interests of the class. See 23 Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975); see also Russell v. United States, 308 24 F.2d 78, 79 (9th Cir. 1962) (“a litigant appearing in propria persona has no authority to represent 25

26 1 Cal. Civ. Proc. Code § 413.30 provides that “[w]here no provision is made in this chapter or other law for the service of summons, the court in which the action is pending may direct that 27 summons be served in a manner which is reasonably calculated to give actual notice to the party to 1 anyone other than himself”). 2 CONCLUSION 3 For the reasons set forth above, the Court orders as follows. 4 1. The Court DENIES as moot Plaintiff's request to proceed in forma pauperis, Dkt. 5 No. 9, and his request to reopen this action, Dkt. No. 15. 6 2. The Court DENIES Plaintiffs request to stay this action and to order the United 7 States Marshal to effect service, Dkt. No. 19; and DENIES Plaintiff's request that the Court waive 8 the service requirement and electronically issue the summons and complaints to Defendants, Dkt. 9 || No. 21. 10 3. The Court DENIES Plaintiff's request to proceed as a class action. Dkt. No. 22. 11 4. The Court GRANTS Plaintiffs request to extend the time to effect service. Dkt. 12 || No. 19. Plaintiff must effect service by September 30, 2024. Failure to effect service by 13 September 30, 2024, will result in dismissal of this action pursuant to Fed. R. Civ. P. 4(m) without 14 || further notice to Plaintiff unless he can demonstrate good cause for the failure to serve. 3 15 This order terminates Dkt. Nos. 9, 15, 19, 21, 22. a 16 IT IS SO ORDERED. 17 || Dated: 8/1/2024

HAYWOOD S. GILLIAM, JR. 19 United States District Judge 20 21 22 23 24 25 26 27 28