Long v. McAfee ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WAN TING LONG, et al., Case No. 1:19 -cv-00898-DAD-SAB 12 Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ 13 v. MOTION FOR EXTENSION AND RECONSIDERATION 14 ERIC MCAFEE, et al., (ECF No. 21) 15 Defendants. THIRTY DAY DEADLINE 16 17 Currently before the Court is Plaintiffs’ motion for an extension and for reconsideration 18 filed on January 17, 2020. Plaintiffs’ motion shall be granted in part to the extent it requests an 19 extension to comply with the Courts previous order filed on December 16, 2019, and shall be 20 denied as to any other aspects that seek reconsideration of any previous order. 21 I. 22 BACKGROUND 23 On July 1, 2019, Wang Ting Long and Xuejun Makhsous (“Plaintiffs”), proceeding pro 24 se, filed this action alleging violations of the Federal Securities Act and California law. (ECF 25 No. 1.) On September 24, 2019, because Plaintiffs failed to file proofs of service showing that 26 Defendants had been served in this action, the Court ordered Plaintiffs to file a notice of status of 27 service within fourteen (14) days of entry of the order. (ECF No. 10.) On October 7, 2019, Plaintiffs filed, and on October 9, 2019, the Court docketed, proofs of service alleging service on 1 some but not all of the Defendants. (ECF No. 11.) On October 7, 2019, Plaintiffs also filed a 2 request for entry of default against all but two of the Defendants. (ECF No. 12.) 3 On October 25, 2019, the Court denied Plaintiffs’ request for entry of default. (ECF No. 4 13.) In the Court’s order, the Court advised Plaintiffs they were required to file proofs of service 5 demonstrating service on the Defendants that Plaintiffs had submitted no proofs of service 6 pertaining to, and file amended proofs of service or supplemental affidavits demonstrating proper 7 service had been completed on the Defendants that Plaintiffs sought entry of default against. 8 (Id.) On November 21, Plaintiffs filed three separate documents in response to the Court’s order: 9 (1) a filing a entitled a “motion to reconsider,” which the Court construed as a motion to 10 reconsider the Court’s order entered on October 25, 2019 denying Plaintiffs’ request for entry of 11 default (ECF No. 16); (2) a document entitled “updated request for entry of default,” with an 12 attached proposed order that was entitled “proposed default judgment order” (ECF No. 17); and 13 (3) a supplemental affidavit by Plaintiff Xuejun Makhsous (“Makhsous”), describing certain 14 efforts to contact and serve the defendants in this action (ECF No. 18). 15 On December 16, 2019, the Court denied Plaintiffs’ motion for reconsideration and 16 updated request for entry of default. (ECF No. 20.) In the order, the Court expressed its concern 17 with the modified proofs of service that were submitted by Plaintiffs. Specifically, the Court 18 could not accept the modified proofs of service for consideration because: (1) the modified 19 proofs of service did not contain a signature and date from the process server or the individual 20 who modified the proofs of service attesting to the truth and knowledge of the modifications and 21 information conveyed in the proofs of service; and (2) aspects of the modified proofs of service 22 appeared to demonstrate that the documents were altered using a computer program, a copier, or 23 otherwise, by utilizing signatures and aspects from the other proofs of service to make it appear 24 as if the process server had made the modifications. (ECF No. 20 at 16-17.) Based on these 25 facts and other reasons explained in the order, the Court denied Plaintiffs’ motion for 26 reconsideration and updated request for entry of default. The Court also ordered Plaintiffs to 27 provide, within thirty (30) days of service of the order, an affidavit from the process server 1 effectuated. (ECF No. 20 at 20.) The Court warned Plaintiffs that the failure to comply with the 2 order would result in the recommendation of dismissal of this action. (Id.) The Plaintiffs were 3 also advised that the Court may consider holding a live evidentiary hearing whereby the process 4 server would be required to appear in person to testify as to the modifications made to the 5 originally submitted proofs of service. (Id. at 19.) 6 On January 17, 2020, Plaintiffs filed the motion for an extension and reconsideration that 7 is currently before the Court. (Mot. Ext. & Recons. (“Mot.”), ECF No. 21.) 8 II. 9 DISCUSSION 10 As described above, on December 16, 2019, the Court ordered Plaintiffs to file, within 11 thirty days of service of the order, an affidavit of the process server, Queenie Orteza (“Orteza”), 12 that explains how the modifications to the originally submitted proofs of service were made and 13 that explains precisely how service was effectuated in this manner. (ECF No. 20 at 20.) 14 Plaintiffs have not provided such an affidavit and instead have filed the current motion for an 15 extension of time and for reconsideration. 16 In their motion, Plaintiffs state that on November 16, 2019, Makhsous asked Orteza to 17 update the proofs of service per the Court’s request,1 and Orteza then instructed Makhsous to 18 make the corrections on the proofs of service as Orteza was out of town and had no access to a 19 computer. (Mot. 4; Ex. 2.) Although Plaintiffs do not explicitly state they then altered the 20 original proofs of service, the Court considers this an implicit confirmation of the Court’s 21 concern that the modified proofs of service were not in fact modified by Orteza but were rather 22 modified in order to look as if the process server had modified them. The Court advises 23 Plaintiffs this is not acceptable. See Juarez v. Delgado, No. EDCV130275DDPAS, 2016 WL 24 3660613, at *4 (C.D. Cal. Feb. 23, 2016) (noting that dismissal is an appropriate sanction for 25 conduct that abuses the judicial process such as for falsifying a document, and a party’s pro se 26 status does not excuse such conduct) (citing Combs v. Rockwell Int’l Corp., 927 F.2d 486, 488 27 1 It appears this request refers to the Court’s previous order dated October 25, 2019, wherein the Court ordered Plaintiffs to file amended proofs of service or supplemental affidavits demonstrating proper service had been 1 (9th Cir. 1991)). Nonetheless, given the fact that the modifications were apparently made at the 2 direction and with the consent of the process server,2 the Court will currently decline to find 3 Plaintiffs were intending to perpetuate a fraud upon the Court based on these circumstances. 4 However, despite the attached emails indicating the modifications were made at the request of 5 Orteza, the Court shall still require Orteza to confirm in her affidavit that she in fact advised 6 Plaintiffs to make the modifications themselves. 7 Turning to the events following the Court’s December 16, 2019 order, Plaintiffs state that 8 on December 22 and 23, 2019, Makhsous asked Orteza to provide an affidavit regarding service. 9 (Mot. 5.) Plaintiffs argue that Makhsous has been out of the country due to the holidays and has 10 not yet received an affidavit from Orteza, and Plaintiffs move the Court for an extension to 11 submit an affidavit from Orteza, and to reconsider the Court’s order “pending affidavit from 12 Process server Queenie Orteza.” (Mot. 5.) 13 The Court has reviewed the emails attached to the motion. On December 22, 2019, 14 Makhsous wrote: “Our request for default judgment is denied because of problems with how the 15 summons were served upon defendants. Please prepare [an] affidavit of summons and attend 16 hearing in court.”3 (Id.) Orteza responded: “I will need the official court request and fee for my 17 time to appear is $55 per hour.” (Id.) Plaintiff responded: “The court asks you to provide [an] 18 affidavit that you took those photos of Aemetis office, and you have made modification on the 19 certificates of service. The court said you doubled checked two boxes that conflicts with one and 20 another [sic]. Please send me your affidavits to explain the discrepancy on your certificate of 21 service. We hope to avoid your appear [sic] in court in Fresno. See attached court order.” 22 (Mot., Ex. 3.) 23 24 2 On November 15, 2019, Makhsous emailed Orteza stating: “I need your updated POS to seek Default Judgment. That’s court order.” (Mot., Ex. 2.) On November 15, 2019, Orteza responded: “Sorry I went out of town for 25 emergency. Here’s the POS you requested.” (Id.) Makhsous responded: “The court ask[ed] you to check only one box not two or more boxes. Those proofs are insufficient.” (Id.) Orteza then responded: “You can just white out the section that needs to be erased so it saves us both time than going back and forth on these forms. I’m out of 26 town and I have no access right now to a laptop.” (Id.) 27 3 The Court advises Plaintiffs that the Court has not yet ordered that any person appear at a live evidentiary hearing, but rather cautioned Plaintiffs that a live evidentiary hearing may be required following submission of Orteza’s 1 On December 23, 2019, Orteza responded: “Can you please send me the full court order 2 including exhibits? If you don’t have it, can you give the lawyer who has it so I can obtain copy 3 [sic].” (Id.) On the same date, Orteza also wrote: “I served these people and did my work as per 4 your instructions. My suggestion is that if they have a lawyer, server their lawyers instead to 5 eliminate further issues than argue with the other party about service back and forth.” (Id.) 6 The Court is concerned that it appears Orteza is reluctant or unhurried to provide her 7 clients, Plaintiffs in this action, with sufficient proofs of service attesting to the fact that she 8 completed service. The Court shall grant Plaintiffs motion for an extension and provide an 9 additional thirty (30) days to obtain such affidavit from Orteza.4 10 However, the Court shall also require Orteza’s affidavit to confirm whether Orteza in fact 11 authorized Plaintiffs to modify the proofs of service on her behalf, and the Court shall also 12 require Plaintiffs to submit an affidavit from one of the Plaintiffs indicating who in fact modified 13 the proofs of service and indicating whether the modifications were completed with authorization 14 from Orteza. 15 Alternatively, if Plaintiffs cannot, despite due diligence and good faith efforts, obtain 16 such affidavit from Orteza, Plaintiffs shall then be required to, within thirty days of service of 17 this order: (1) file an affidavit from one of the Plaintiffs attesting to who modified the previously 18 filed proofs of service; attesting to whether Orteza provided authorization to complete the 19 modifications; and attesting to the efforts Plaintiffs have made to obtain the affidavits from 20 Queenie Orteza; and (2) obtain the services of an alternate process server to serve Defendants, 21 and submit proofs of service from the alternative process server demonstrating service has been 22 completed in this action. 23 /// 24 /// 25 /// 26 4 It is somewhat unclear whether Plaintiffs are requesting reconsideration only of the aspect of the Court’s December 16, 2019 order requiring Plaintiffs to submit an affidavit from the process server within thirty days, or if 27 Plaintiffs are seeking reconsideration on the merits of the denial of entry of default. To the extent Plaintiff is seeking reconsideration of any aspect of any previous order other than pertaining to the deadline for submitting an 1 III. 2 ORDER 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Plaintiffs’ motion for reconsideration and extension (ECF No. 21) is GRANTED 5 IN PART insofar as the motion requests an extension of time, and DENIED IN 6 PART insofar as the motion requests reconsideration of any other aspect of any 7 previous order of the Court; 8 2. Within thirty (30) days of service of this order, Plaintiffs shall file both: 9 a. An affidavit of the process server Queenie Orteza that explains how the 10 modifications to the originally submitted proofs of service were made; 11 whether Queenie Orteza authorized Plaintiffs to modify the proofs of 12 service; and how service was effectuated on the Defendants in this action; 13 and 14 b. An affidavit from a Plaintiff attesting to who modified the proofs of 15 service and whether they were given authorization to do so from Orteza; 16 3. Alternatively, if Plaintiffs are unable to obtain an affidavit from the process server 17 Queenie Orteza, within thirty (30) days of service of this order, Plaintiffs shall: 18 a. File an affidavit from a Plaintiff attesting to: how the previously proofs of 19 service were modified; whether Queenie Orteza authorized Plaintiffs to 20 complete the modifications; and the diligence and efforts Plaintiffs have 21 made to obtain the affidavits from Queenie Orteza; and 22 b. Obtain the services of an alternate process server to serve Defendants and 23 submit proofs of service from the alternative process server demonstrating 24 service has been completed in this action. 25 /// 26 /// 27 /// 1 Plaintiffs are advised that the failure to comply with this order will result in the 2 | recommendation of dismissal of this action as Plaintiffs have failed to demonstrate that any 3 | defendant has been properly served with the complaint and summonses in accordance with the 4 | requirements of Federal Rule of Civil Procedure 4 and the California Code of Civil Procedure. 5 6 IT IS SO ORDERED. OF. nf ee 7 | Dated: _ January 24, 2020 _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28