Opinion
Case No. 1:17-cv-01748-DAD-EPG
08-08-2018
MADHU SAMEER, Plaintiff, v. SAMEER KHERA, et al., Defendants.
ORDER GRANTING PLAINTIFF'S REQUEST FOR AN ORDER THAT SERVICE BE MADE BY THE U.S. MARSHAL ON THE KHERA DEFENDANTS, AND GRANTING REQUEST FOR SUBSTITUTION OF PARTIES
(ECF No. 106, 107, 108)
The Court has before it Plaintiff's request for an order that the United States Marshal's Office serve the Khera Defendants (ECF No. 107, 108); and that the County of Fresno be substituted for the City of Fresno, with the City of Fresno stuck from the complaint/action entirely, and a new summons be issued for the County of Fresno (ECF No. 106).
I. Background
Plaintiff, Madhu Sameer, proceeding pro se, commenced this action on December 26, 2017, against 30 defendants. (ECF No. 1.) On April 26, 2018, and April 30, 2018, Plaintiff filed requests to effect substituted service of process upon eight of the defendants, including the "Khera Defendants," consisting of Sameer Khera and Snehal Devani, husband and wife, and their businesses, Healthy Masala and Devine Arts & Entertainment. (ECF No. 24, 26), The Court denied these requests on May 2, 2018, providing Plaintiff with guidance regarding the requirements for service under the applicable rules. (ECF No. 38.)
After several defendants filed motions to dismiss (see ECF Nos. 48, 52), Plaintiff requested leave to file an amended complaint (ECF No. 53). The Court granted Plaintiff leave to file an amended complaint. (ECF No. 56.) In doing so, the Court reminded Plaintiff that under Federal Rule of Civil Procedure (8)(a), the amended complaint was required to provide only a short and plain statement of her claims, and imposed a requirement that Plaintiff's amended complaint not exceed 50 pages in length. (ECF NO. 56 at 2.) The Court warned Plaintiff that failure to follow this directive may result in dismissal of the action. (Id.)
On June 15, 2018, Plaintiff filed her First Amended Complaint (ECF No. 59), which was 171 pages in length. The Court dismissed the First Amended Complaint on June 21, 2018, again granted Plaintiff leave to amend, and again instructed Plaintiff that any amended complaint was not to exceed 50 pages in length. (ECF No. 69 at 3.) On July 1, 2018, Plaintiff filed her Second Amended Complaint, which is exactly 50 pages in length. (ECF No. 72.)
On June 20, 2018, Plaintiff filed a renewed request to effect substituted service of process upon the Khera Defendants. (ECF No. 68.) The Court denied the request, finding that Plaintiff had not demonstrated that she had exercised reasonable diligence in attempting to serve these defendants. (ECF No. 77.)
Plaintiff is now back before the Court requesting that the Court order the U.S. Marshal to effect service on the Khera Defendants. (ECF No. 107, 108.)
Plaintiff also represents that she recently learned that she wrongly named the City of Fresno as a defendant in this action and requests that the County of Fresno be substituted in to replace the City of Fresno, that the City of Fresno be stricken from the complaint, and that a new summons be issued for the County of Fresno. (ECF No. 106.)
II. Discussion
a. Service of Khera Defendants by U.S. Marshal (ECF Nos. 107, 108)
Plaintiff maintains that the Khera Defendants are evading service, and provides a summary of efforts she has made to serve these defendants (ECF No. 108 at 2-4.) She claims that she has expended over $855 in attempting to serve the Khera Defendants, including several skip traces. Plaintiff has also attached exhibits that support some of the representations she makes regarding her attempts to serve the Khera Defendants. (See ECF No. 108 at 13-38; see also ECF Nos. 105, 109.)
Plaintiff has neither requested nor been authorized to proceed in this action in forma pauperis. Thus, the Court has discretion to, but is not required to, "order that service be made by a United States marshal or deputy marshal." Fed. R. Civ. P. 4(c)(3) ("At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal. . . . The court must so order if the plaintiff is authorized to proceed in forma pauperis. . . . ")
The Court has reviewed and, for purposes of this request, will deem true the representations made by Plaintiff regarding her attempts to serve the Khera Defendants, including attempts to obtain waiver of service from defendant Sameer Khera, the amount Plaintiff has expended in attempting to serve the Khera Defendants, and Plaintiff's apparent lack of access to funds to make further attempts to serve the Khera Defendants.
In reliance on Plaintiff's representations, the Court finds it appropriate to exercise its discretion and order service of the Khera Defendants by a United States marshal or deputy marshal. The Court notes, however, that it is Plaintiff's obligation to complete the summons that will be provided to the U.S. Marshal's Office for service, including providing accurate addresses for service of the summons and complaint on the Khera Defendants.
b. Substitution of Parties (ECF No. 106)
Plaintiff requests that the Court substitute the County of Fresno for the City of Fresno in this action, and that the City of Fresno be stricken entirely from the complaint. (ECF No. 106.) Plaintiff also requests that the Court order a new summons issued against the County of Fresno. Plaintiff explains that she intended to file suit against the County of Fresno, and not the City of Fresno, and seeks to rectify her mistake by striking the City of Fresno and substituting the County of Fresno. The Court finds good cause for and will therefore grant these requests.
III. Conclusion
Based on the foregoing, IT IS ORDERED:
1. Plaintiff's request for an order of the Court for service of Defendants Sameer Khera, Snehal Devani, Healthy Masala, and Devine Arts & Entertainment (the "Khera Defendants"), by a Unites States marshal or deputy marshal is GRANTED.
a. The Clerk of Court is respectfully directed to send to Plaintiff four (4) USM-285 forms, four (4) summonses, a Notice of Submission of Documents form, an instruction sheet, and a copy of the Second Amended Complaint (ECF No. 72) filed on July 1, 2018.
b. Within thirty (30) days from the date of this order, Plaintiff shall complete the Notice of Submission of Documents and submit the completed Notice to the Court with the following documents:
i. One completed summons for each of the Khera Defendants;
ii. One completed USM-285 form for each of the Khera Defendants; and
iii. Four (4) copies of the Second Amended Complaint (ECF No. 72) filed on July 1, 2018.
c. Plaintiff need not attempt further service on the Khera Defendants and need not request waiver of service. Upon receipt of the above-described documents, the Court will direct the United States Marshal Service to serve the Khera Defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
IT IS SO ORDERED.
2. Plaintiff's request for substitution of parties is GRANTED. The County of Fresno is ordered SUBSTITUTED for Defendant City of Fresno, and Defendant City of Fresno is ordered STRICKEN from the Second Amended Complaint and DISMISSED from this action.
3. The Clerk of the Court is respectfully directed to issue a new summons against substituted defendant the County of Fresno.
Dated: August 8 , 2018
/s/_________
UNITED STATES MAGISTRATE JUDGE