Navarrette v. Department of Homeland Security

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TOMMY NAVARRETTE, Case No.: 3:22-cv-0006-LL-AHG 12 Plaintiff, REPORT AND RECOMMENDATION 13 v. RECOMMENDING THE COURT: 14 ROBIN WREN, (1) GRANT DEFENDANT’S MOTION 15 Defendant. TO SET ASIDE ENTRY OF 16 CLERK’S DEFAULT; and 17 (2) DENY PLAINTIFF’S MOTION 18 FOR ENTRY OF DEFAULT JUDGMENT AS MOOT 19 20 [ECF Nos. 14, 16] 21 22 23 24 25 26 27 28 1 Before the Court is (1) Defendant Special Agent Robin Wren’s (“Defendant”) 2 Motion to Set Aside Default (ECF No. 14) and (2) Plaintiff Tommy Navarrette’s 3 (“Plaintiff”) Motion for Default Judgment (ECF No. 16). 4 I. BACKGROUND 5 Plaintiff, who is proceeding pro se, first filed this civil rights action on 6 January 4, 2022, along with a motion to proceed in forma pauperis (“IFP”). ECF Nos. 1, 7 2. On March 10, 2022, the Court granted Plaintiff’s motion to proceed IFP and, after 8 conducting the requisite IFP screening process, dismissed the majority of Plaintiff’s claims 9 for failure to state a claim pursuant to 8 U.S.C. § 1915(e)(2)(B). ECF No. 6. Specifically, 10 the Court dismissed Plaintiff’s claims against Department of Homeland Security, U.S. 11 Customs and Border Protection, and Metropolitan Correction Center for failing to state a 12 claim upon which either § 1983 or Bivens relief may be granted, but permitted Plaintiff 13 until April 4, 2022 to file a First Amended Complaint to identify by name the individual 14 officers he seeks to hold liable based on his allegations in this action. 15 Plaintiff filed the operative First Amended Complaint (“FAC”) in this action on 16 March 25, 2022, naming Defendant Robin Wren, a Homeland Security Investigations 17 Special Agent for the Department of Homeland Security. ECF No. 7. Because Plaintiff is 18 proceeding IFP, Rule 4 of the Federal Rules of Civil Procedure entitles him to service of 19 the summons and complaint by a U.S. Marshal. Fed. R. Civ. P. 4(c)(3). Upon review of the 20 FAC on May 16, 2022, the Court found that Plaintiff alleged a plausible Fourth 21 Amendment false arrest claim against Defendant Wren and accordingly directed the Clerk 22 to issue a summons as to Defendant Wren and to forward it to Plaintiff along with a blank 23 U.S. Marshal Form 285. ECF No. 9 at 4. In addition, the Court instructed the Clerk to 24 provide Plaintiff with a certified copy of the Order granting Plaintiff’s IFP status, certified 25 copies of his FAC, and the summons, and instructed Plaintiff to “complete the USM Form 26 285s as completely and accurately as possible, include an address where each named 27 Defendant may be found and/or subject to service pursuant to S.D. Cal. CivLR 4.1c., and 28 return them to the United States Marshal[.]” Id. (emphasis in original). The Court also 1 ordered the U.S. Marshal, pursuant to Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915(d), “to 2 serve a copy of the FAC and summons upon Defendant Wren as directed by Plaintiff on 3 the USM Form 285s provided to him.” Id. 4 Plaintiff filed proof of service on July 14, 2022, returning an executed summons 5 signed by the U.S. Marshal on July 12, 2022, certifying that the USMS Deputy tasked with 6 service “personally served . . . the process described on the individual . . . at the address 7 shown above[.]” The individual named on the summons was “Special Agent Robin Wren,” 8 and the address provided by Plaintiff was Homeland Security Investigations Legal 9 Advisors Office, 880 Front St, Suite 2246, San Diego, CA 92101. Id. 10 On September 21, 2022, Plaintiff filed a motion for entry of Clerk’s Default pursuant 11 to Fed. R. Civ. P. 55(a), due to Defendant Wren’s failure to file a responsive pleading to 12 the FAC within 60 days after the July 12, 2022 date of personal service (according to the 13 executed summons). ECF No. 12. The Clerk entered default on September 27, 2022. ECF 14 No. 13. 15 On September 30, 2022, the United States filed a Motion to Set Aside Default (ECF 16 No. 14), on the basis that Plaintiff failed to effectuate proper service on Defendant Wren 17 in accordance with Rule 4(i) of the Federal Rules of Civil Procedure. Rule 4(i) provides 18 that, when suing a United States officer or employee in an individual capacity for an act or 19 omission occurring in connection with the officer’s duties, in addition to serving the 20 individual officer, the plaintiff must also serve the United States. Fed. R. Civ. P. 4(i)(3). 21 To serve the United States, a party must deliver a copy of the summons and complaint to 22 the United States Attorney for the district where the action is brought or send a copy of 23 each by registered or certified mail to the civil-process clerk at the United States Attorney’s 24 Office, and must also send a copy of each by registered or certified mail to the Attorney 25 General of the United States in Washington, D.C. Fed. R. Civ. P. 4(i)(1). Defendant 26 contends that Plaintiff failed to serve the U.S. Attorney’s Office in this district, the United 27 States Attorney General, or Defendant Wren, and provides a Declaration from Defendant 28 Wren stating that, contrary to the proof of service executed by the U.S. Marshal, she was 1 not personally served with the summons and complaint in this action. See ECF No. 14-1, 2 Wren Decl. ¶ 3. 3 Because Plaintiff failed to properly effect service in this action, the United States 4 requests that the entry of default against Defendant Wren be set aside, and additionally 5 requests that the 60-day time period for Defendant to respond to the FAC not commence 6 until Plaintiff has complied with the service requirements of Rule 4(i). ECF No. 14 at 3. 7 After the United States filed its Motion to Set Aside Default on September 30, 8 Plaintiff filed a Motion for Default Judgment on October 3, 2022. ECF No. 16. 9 II. DISCUSSION 10 Rule 55 provides that the Court may set aside an entry of default for good cause. 11 Fed. R. Civ. P. 55(c). The Court’s discretion to set aside entry of default “is especially 12 broad where, as here, it is entry of default that is being set aside, rather than a default 13 judgment.” Mendoza v. Wight Vineyard Mgmt., 783 F.2d 941, 945 (9th Cir. 1986). Where 14 a clerk’s entry of default was entered despite improper service of process, there is good 15 cause to set aside the default as void. See, e.g., McCain v. California Highway Patrol, No. 16 2:11-CV-01265 KJM, 2011 WL 5169372, at *3 (E.D. Cal. Oct. 28, 2011) (collecting cases 17 for the proposition that “a clerk’s entry of default may be set aside as void when default 18 was entered in the absence of proper service of process”); Banks v. ACS Educ., No. 19 10CV1886-BTM CAB, 2011 WL 811601, at *1 (S.D. Cal. Mar. 2, 2011) (“Improper 20 service of the complaint presents good cause to set aside entries of default.”). 21 Upon review of the record, the undersigned agrees that it was improper to enter 22 default against Defendant Wren without proof of service on the United States1 and 23 24 25 1 Defendant Wren disputes that she was personally served, although the proof of service indicates that personal service was effected by the USMS Deputy. ECF No. 11. However, 26 regardless of whether Defendant Wren was personally served, Rule 4 dictates that service 27 on Defendant Wren would not be complete without service on the United States. Therefore, there is good cause to set aside the entry of default whether or not Defendant Wren was 28 1 accordingly recommends that the Court find good cause to grant the motion to set aside 2 entry of default. If the Court sets aside the Clerk’s entry of default, the Court should also 3 deny Plaintiff’s Motion for Default Judgment (ECF No. 16) as moot. 4 However, for the reasons explained more fully below, the undersigned further 5 recommends that the Court deny the request to extend Defendant’s deadline to file a 6 responsive pleading to 60 days after Plaintiff properly completes service. Instead, the more 7 efficient and fairer approach would be to set aside the entry of default, excuse the Rule 4(i) 8 service requirements, and extend the deadline for Defendant to respond to the FAC to 60 9 days from the date of the Court’s order setting aside entry of default. 10 The Ninth Circuit has explained that “Rule 4 is a flexible rule that should be liberally 11 construed so long as a party receives sufficient notice of the complaint.” Benny v. Pipes, 12 799 F.2d 489, 492 (9th Cir. 1986) (quoting United Food & Commercial Workers Union, 13 Locals 197, 373, 428, 588, 775, 839, 870, 1119, 1179 & 1532 v. Alpha Beta Co., 736 F.2d 14 1371, 1382 (9th Cir. 1984)). However, even under a liberal construction, “neither actual 15 notice nor simply naming the defendant in the complaint will provide personal jurisdiction 16 without ‘substantial compliance with Rule 4.’” Benny, 799 F.2d at 492 (quoting Jackson v. 17 Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982)). 18 Not only should the Court liberally construe Rule 4 where the party who was 19 improperly served has sufficient notice of the complaint, but the Ninth Circuit has also 20 explained, under similar circumstances involving a pro se litigant’s technical defect in 21 service, that courts “are generally more solicitous of the rights of pro se litigants, 22 particularly when technical jurisdictional requirements are involved.” Borzeka v. Heckler, 23 739 F.2d 444, 448 n.2 (9th Cir. 1984). 24 In Borzeka, the Ninth Circuit set forth a four-factor test governing when Rule 4 25 service requirements may be excused in the context of a motion to dismiss a litigant’s 26 complaint for failure to properly effectuate service—if “(a) the party that had to be served 27 personally received actual notice, (b) the defendant would suffer no prejudice from the 28 defect in service, (c) there is a justifiable excuse for the failure to serve properly, and (d) 1 the plaintiff would be severely prejudiced if his complaint were dismissed.” 739 F.2d at 2 448. Although Borzeka deals with whether Rule 4 requirements may be excused to deny a 3 motion to dismiss a complaint, which is not the question at hand in this instance, the same 4 principles may be applied to the question of whether Rule 4 service requirements should 5 be excused more generally. 6 Here, the undersigned recommends that the Court find Plaintiff substantially 7 complied with Rule 4 by completing the USM Form 285 in a manner that was consistent 8 with the Court’s instructions in the Court’s May 16, 2022 Order. See ECF No. 9. 9 Specifically, the Court directed the Clerk “to issue a summons as to Defendant Wren and 10 forward it to Plaintiff along with a blank U.S. Marshal Form 285 for Defendant” and to 11 provide Plaintiff with a copy of the Order granting Plaintiff’s IFP status, certified copies 12 of his FAC, and the summons “so that [Plaintiff] may serve the Defendant[,]” ordered 13 Plaintiff to “complete the USM Form 285s as completely and accurately as possible” and 14 to “include an address where each named Defendant may be found and/or subject to 15 service” and to return the form to the United States Marshal, and ordered the U.S. Marshal 16 “to serve a copy of the FAC and summons upon Defendant Wren as directed by Plaintiff 17 on the USM Form 285s provided to him.” Id. at 4-5 (emphasis added). 18 Plaintiff strictly complied with the language of the Court’s May 16, 2022 Order by 19 completing and returning the USM Form 285 with Defendant’s name and an address where 20 Defendant Wren could be personally served, which resulted in an executed summons 21 indicating that personal service was effected. Under a flexible construction of the 22 requirements of Rule 4, these efforts to serve Defendant Wren amount to substantial 23 compliance with the Rule. 24 Turning to the Borzeka factors, Defendant Wren, the Civil Process clerk for the 25 United States Attorney’s office for this district, and the United States Attorney General 26 now all have actual notice of this litigation, as reflected by the Declarations the United 27 States provided in support of its Motion to Set Aside Entry of Default. See ECF No. 14-1, 28 Wren Decl. ¶¶ 2-3; ECF No. 14-2, Wiggins Decl. ¶¶ 4-5. Nor would any prejudice be 1 suffered by Defendants as a result of Plaintiff’s technical defect in service. This case has 2 only just commenced, and the undersigned recommends that Defendant Wren be afforded 3 an additional 60 days from the date of the Court’s Order setting aside entry of default to 4 file a responsive pleading to the FAC, which in effect would give Defendant Wren at least 5 78 days since she received actual notice of the litigation to respond, which is more time 6 than would be provided Defendant under Rule 4 had Plaintiff properly served her. 7 There is also a justifiable excuse for Plaintiff’s failure of service, in light of his 8 efforts to serve Defendant Wren consistent with the instructions set forth in the Court’s 9 May 16, 2022 Order. To be clear, Plaintiff was responsible for providing all the information 10 necessary for the U.S. Marshal to effect service on his behalf under the IFP statute. Cristo 11 v. SEC, No. 19CV1910-GPC(MDD), 2020 WL 2735183, at *2 (S.D. Cal. May 26, 2020). 12 Therefore, Plaintiff’s failure to return USM Form 285s providing the information necessary 13 for the U.S. Marshal to serve the United States, in addition to serving Defendant Wren 14 individually, ultimately falls on Plaintiff’s shoulders and is not the fault of the U.S. Marshal 15 or the Court. However, in light of the language of the Court’s order regarding how to serve 16 Defendant Wren, Plaintiff’s pro se status, and the principles of liberal construction that 17 must guide the Court’s analysis, the undersigned recommends that the Court adopt the 18 approach followed in Cristo and find that Plaintiff is excused from strict compliance with 19 Rule 4(i). See id. at *3 (explaining that “under the Borzeka factors, the Court excuses 20 Plaintiff from strict compliance with Rule 4(i). It is not disputed that Defendants have 21 received actual notice of the complaint and there is no indication that they would suffer 22 any prejudice from the defect in service. The Court also concludes that there is a justifiable 23 excuse for the failure to serve properly. Although legally unsupported, Plaintiff’s strict 24 construction of the Court’s order granting the U.S. Marshal authority over service is not 25 unreasonable and could constitute justifiable good cause.”). 26 Plaintiff substantially complied with the requirements of Rule 4 by completing and 27 returning the USM 285 form to the U.S. Marshal with information to effect personal service 28 on Defendant Wren, Plaintiff has a justifiable excuse for his failure to effect service on the 1 United States, and Defendant has not contended or established that she has been prejudiced 2 by the technical defect in service. Additionally, Defendant Wren and the United States now 3 have actual notice of the summons and FAC. Considering these factors,2 as well as the 4 Court’s charge to be especially “solicitous of the rights of pro se litigants, particularly when 5 technical jurisdictional requirements are involved[,]” the undersigned recommends the 6 Court excuse the Rule 4(i) service requirements in this instance and permit the case to 7 proceed without requiring Plaintiff to strictly comply with the Rule. Borzeka, 739 F.2d at 8 448 n.2. Instead, the more efficient and fairer approach would be to set aside the entry of 9 default, excuse the Rule 4(i) service requirements, and extend the deadline for Defendant 10 to respond to the FAC to 60 days from the date of the Court’s order setting aside entry of 11 default. 12 III. CONCLUSION 13 For the foregoing reasons, the undersigned RECOMMENDS that the Court: 14 (1) GRANT Defendant’s Motion to Set Aside Default (ECF No. 14); 15 (2) DENY Plaintiff’s Motion for Default Judgement as moot; 16 (3) DENY Defendant’s request to extend her deadline to file a responsive pleading 17 to 60 days after Plaintiff properly completes service; and 18 (4) ORDER Defendant to file a responsive pleading to the FAC within 60 days of 19 the date of the Court’s Order granting Defendant’s Motion to Set Aside Default. 20 \\ 21 \\ 22 \\ 23 \\ 24 25 26 2 Because the fourth and final Borzeka factor concerns whether Plaintiff would be severely 27 prejudiced if his case were dismissed, it is inapposite in this context and the undersigned accordingly does not address it. 28 l The Court submits this Report and Recommendation to United States District Judge 2 ||Linda Lopez under 28 U.S.C. § 636(b)(1). Any party to this action may file written 3 || objections with the Court and serve a copy on all parties no later than November 2, 2022. 4 || The document should be captioned “Objections to Report and Recommendation.” 5 IT IS SO ORDERED. 6 7 ||Dated: October 19, 2022 Jere H. Klute Honorable Allison H. Goddard 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28