Opinion
Civil Action 1:22-cv-03134-NYW-SBP
08-30-2023
PHILIPPE ZATTA, Plaintiff, v. LON F. HURWITZ, individually and in his official capacity as Judge, PAUL T. MINERICH, individually and in his official capacity as Court Commissioner, SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE, JOHN PAUL BANAS, individually and in his official capacity as Judge, 11TH JUDICIAL CIRCUIT ST. CHARLES MISSOURI, and MONDONNA L. GHASEDI, individually and in her official capacity as Judge, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Susan Prose, United States Magistrate Judge
This matter is before this court sua sponte and in relation to the court's Order to Show Cause, ECF No. 34, issued on July 24, 2023. For the reasons set forth below, this court respectfully RECOMMENDS that the complaint, ECF No. 2, be DISMISSED WITHOUT PREJUDICE as to Defendants Superior Court of California, County of Orange (“California Superior Court”), Judge Lon F. Hurwitz, and Paul T. Minerich (together, the “California Defendants”). It is further RECOMMENDED that Mr. Zatta's Motion for a Preliminary Injunction and Other Equitable Relief, ECF No. 18, be DENIED AS MOOT.
This court addresses the claims against the Defendants from Missouri-Judge Banas, Judge Ghasedi, and the 11th Judicial Circuit St. Charles, Missouri-in a separate recommendation in response to those Defendants' motions to dismiss. See ECF No. 35.
BACKGROUND
I. Procedural History
Mr. Zatta filed the operative complaint on December 5, 2022 (the “Complaint” or “Compl.”), alleging multiple violations of his constitutional rights under 42 U.S.C. § 1983. ECF No. 2. To-date, the California Defendants have not appeared in this lawsuit. On July 24, 2023, the court issued an Order to Show Cause, ECF No. 34, questioning whether the California Defendants were properly served. The court ordered Mr. Zatta to file a response explaining why the California Defendants were in fact properly served by August 7, 2023. Mr. Zatta did not respond to the Order to Show Cause.
II. Factual Allegations
Mr. Zatta asserts two causes of action against the California Defendants under § 1983 for violations of the Equal Protection Clause of the Fourteenth Amendment (Compl. ¶¶ 54-59) and his substantive due process rights (id. ¶¶ 60-71). He notes in his Complaint that “[a]ll Defendants are outside of the State of Colorado,” but asserts that venue in the District of Colorado is proper because he “is now a resident of the State of Colorado” and is “still subjected to the unlawful or reckless actions of the Defendants while residing in the State of Colorado.” Id. ¶¶ 6, 14.
Mr. Zatta alleges that the California Defendants “prosecuted” him for child support “on the basis of false accusation[s]” and as a result of his race. Compl. ¶ 24. He asserts that his exwife falsely accused him of not supporting his daughter in December 2015 “in a secret case of prosecution against [him] without any proofs or evidence supporting the false or fraudulent claims” (the “California Proceeding”). Id. ¶ 30. According to the Complaint, Mr. Minerich, the court commissioner for the Superior Court, asserted that an order should be entered against Mr. Zatta for child support, despite the fact that Mr. Zatta and his ex-wife had informed the Superior Court that he “was raising his daughter with [his ex-wife] in California[.]” Id. ¶¶ 32-33. Mr. Zatta contends that Mr. Minerich did so because he believed that “Black or African-American fathers are the most irresponsible fathers in the United States deserving all child support orders against them.” Id. ¶ 33 (emphasis removed). In January 2019, Judge Hurwitz agreed with Mr. Minerich and entered judgment in favor of Mr. Zatta's ex-wife. Id. ¶ 34. Mr. Zatta asserts that in doing so, Judge Hurwitz “ruled that it is perfectly legal to enter a child support [order] against” Mr. Zatta because of his race. Id. According to Mr. Zatta, the Superior Court “has well-established practices of racism, racial profiling, [and] frauds upon the court involving the clerk of courts and/or judicial officers” such as Judge Hurwitz and Mr. Minerich. Id. ¶ 25.
In his improperly filed amended complaint, ECF No. 20, Mr. Zatta listed the case number for the California Proceeding as 17FL100650. All references to the California Proceeding herein are therefore references to that case.
LEGAL STANDARDS
I. Federal Rule of Civil Procedure 12(b)(5).
“The court may dismiss an action pursuant to Rule 12(b)(5) for insufficient service of process.” Meyers v. Pfizer, Inc., No. 13-cv-01508-WJM-CBS, 2014 WL 1598723, at *2 (D. Colo. Apr. 21, 2014), report and recommendation adopted, 2014 WL 2490158 (D. Colo. June 2, 2014), aff'd, 581 Fed.Appx. 708 (10th Cir. 2014). “Without proof of service, the Court lacks personal jurisdiction over the Defendant.” Id. (citing Okla. Radio Assocs. v. FDIC, 969 F.2d 940 943 (10th Cir. 1992)); see also Hukill v. Okla. Native Am. Domestic Violence Coal., 542 F.3d 794, 797 (10th Cir. 2008) (same).
The plaintiff “bears the burden of making a prima facie case that [he] has satisfied statutory and due process requirements so as to permit the court to exercise personal jurisdiction over the defendant.” Lopez v. Colorado, No. 19-cv-00684-WJM-MEH, 2020 WL 2309558, at *19 (D. Colo. Jan. 7, 2020) (quoting Allen v. United Props. & Const., Inc., No. 07-cv-00214-LTB-CBS, 2008 WL 4080035, at *9 (D. Colo. Sept. 3, 2008)). “The parties may submit affidavits and other documentary evidence for the Court's consideration, and plaintiff is entitled to the benefit of any factual doubt.” Fisher v. Lynch, 531 F.Supp.2d 1253, 1260 (D. Kan. 2008). A “[p]laintiff must demonstrate that the procedure employed by [him or her] to effect service satisfied the requirements of Rule 4 of the Federal Rules of Civil Procedure.” Meyers, 2014 WL 1598723 at *2 (citation omitted).
II. Legal Standard for Pleadings of Pro Se Litigants
Mr. Zatta is proceeding pro se. The Court, therefore, “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). This rule applies to all proceedings involving pro se litigants. Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991) (citations omitted); Shell v. Am. Family Rights Ass'n, 899 F.Supp.2d 1035, 1044 n.2 (D. Colo. 2012) (liberally construing pro se pleadings in review of a Rule 12(b)(2) motion to dismiss).
However, Mr. Zatta's pro se status does not vitiate his obligation to adhere to, and comply with, “the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)); Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (stating that a pro se litigant must “comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure”). Thus, while the court makes “some allowances” for a pro se plaintiff's “failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with the pleading requirements,” the court “cannot take on the responsibility of serving as [his] attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall, 935 F.2d at 1110); see also Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (cautioning that the court may not “construct arguments or theories for the [pro se] plaintiff in the absence of any discussion of those issues”) (citation omitted).
ANALYSIS
Even absent a motion from the California Defendants, this court is obligated to consider the question of whether the claims against the California Defendants should be dismissed for insufficient service of process because improper service impacts the court's personal jurisdiction analysis. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”) (quotation omitted); Payton v. U.S. Dep't of Agric., 337 F.3d 1163, 1167 (10th Cir. 2003) (“Jurisdiction is a threshold question that a federal court must address before reaching the merits[.]”) (quotation omitted).
This court cannot exercise personal jurisdiction over a defendant unless they have been properly served with process. See Compama de InversionesMercantiles, S.A. v. Grupo Cementos de Chihuahua S.A.B. DE C.V., 970 F.3d 1269, 1292 (10th Cir. 2020) (“Service of process notifies a defendant of the commencement of an action against him and ‘marks the court's assertion of jurisdiction over the lawsuit.'”); see also Murphy Bros., Inc. v. Mitchetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (“In the absence of service of process (or waiver or service by the defendant), a court ordinarily may not exercise power over a party the complaint names as a defendant.”) (citation omitted). Put another way, without proof of proper service, the court lacks personal jurisdiction over the California Defendants. E.g., Okla. Radio Assocs., 969 F.2d at 943. At this time, the court finds that it cannot exercise personal jurisdiction over the California Defendants because it does not appear that they have been properly served.
Federal Rule of Civil Procedure 4 governs service of a summons and complaint in a federal district court. Pursuant to Rule 4(m), if a defendant is not properly served within 90 days after the complaint is filed, the court, “on motion or on its own notice to the plaintiff, must dismiss the action without prejudice against that defendant or order that service be made within a specific time” (emphasis added). Federal Rule of Civil Procedure 4(j) specifies the proper procedure for serving a “state or local government.” Pursuant to Rule 4(j), “[a] state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by: (A) delivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant.”
Section 416.50 of the California Code of Civil Procedure governs service of process on a “public entity.” Specifically, it provides that “[a] summons may be served on a public entity by delivering a copy of the summons and of the complaint to the clerk, secretary, president, presiding officer, or other head of its governing body.” Cal. Code Civ. Proc. § 416.50(a), available at https7/leginfolegislaturecagov/faces/codesdisplayTextxhtml?lawCode=CCP&division=&title =5.&part=2.&chapter=4.&article=4 (last visited August 29, 2023). Section 416.50(b) defines “public entity” to include “the state and any office, department, division, bureau, board, commission, or agency of the state, the Regents of the University of California, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in this state.”
As explained in the Order to Show Cause, there is nothing in the record to suggest that Ashley Saroya, the person on whom process was served, is the “chief executive officer” of the Superior Court or is “the clerk, secretary, president, presiding officer, or other head of its governing body” authorized by law to receive service on behalf of the California Defendants. The Orange County Clerk of the Board's website states that it is “the official repository of County records and provides administrative support to the Board of Supervisors, the governing boards of certain districts and authorities and the Assessment Appeals Boards and Hearing Officers.” About Us, OC CLERK OF THE BOARD, https://cob.ocgov.com/clerk-board-home/about-us (last visited August 29, 2023). There is no indication on the record in this matter, or on the Clerk of the Board's website, that it is in any way authorized to accept service on behalf of the California Defendants, or that it has any affiliation with the California state judiciary whatsoever.
The court may take judicial notice of information on an agency's website and does so here. See, e.g., Winzler v. Toyota Motor Sales U.S.A., Inc., 681 F.3d 1208, 1212-13 (10th Cir. 2012) (taking judicial notice of the existence of “documents filed with [an agency] and now available on the agency's public website”); see also Buhendwa v. Reg'l Transp. Dist., 82 F.Supp.3d 1259, 1262 n.1 (D. Colo. 2015) (taking judicial notice of the board of directors listed on an agency's website).
As for the individuals, Judge Hurwitz and Mr. Minerich, there is likewise nothing in the record before this court to indicate that they have been properly served. As an initial matter, there is no record showing that Mr. Zatta attempted to comply with Federal Rule of Civil Procedure 4(e)(2), which authorizes service on an individual by delivering a copy to the individual personally, to their dwelling, or to an “agent authorized by appointment or by law to receive service of process.” See Fed.R.Civ.P. 4(e)(2). Therefore, he was obliged to comply with the service rules for individuals established under California law. See Fed.R.Civ.P. 4(e)(1) (an individual may be served by “following state law for serving summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made”). To effect service “on a person not otherwise specified in this article,” a copy of the summons and complaint must be delivered “to such person or to a person authorized by him to receive service of process.” Cal. Code Civ. Proc. § 416.90.
Judge Hurwitz and Mr. Minerich do not fall into any other category specified in Article 4 (“Persons Upon Whom Summons May Be Served”). See https://leginfo.legislature.ca.gov/faces/codes displayText.xhtml?lawCode=CCP&division=&title =5.&part=2.&chapter=4.&article=4 (last visited August 29, 2023).
Pursuant to these standards, service on Judge Hurwitz and Mr. Minerich has failed. The Returns of Service in the record, ECF Nos. 13-14, do not indicate that these individuals were personally and directly served, nor is there any information demonstrating that these individuals authorized the person named Ashley Saroya at the Clerk of the Board to receive service on their behalf. See ECF No. 13 at 2; ECF No. 14 at 2.
Mr. Zatta failed to respond to the Order to Show Cause, and the California Defendants have yet to appear in this action. Accordingly, for the reasons outlined above, the court finds that service on the California Defendants was not proper and that the court may not exercise personal jurisdiction over these improperly-served defendants. Therefore, it is respectfully recommended that all claims against the California Defendants be dismissed without prejudice.
NOTICE FOR PRO SE PLAINTIFF
This court is recommending dismissal of your claims against the California Defendants for insufficient service of process. Because the recommended dismissal would ultimately be for lack of personal jurisdiction, the dismissal is without prejudice. See, e.g., Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (“[D]ismissals for lack of jurisdiction should be without prejudice because the court, having determined that it lacks jurisdiction over the action, is incapable of reaching a disposition on the merits of the underlying claims.”) (emphasis in original) (quoting Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004)); Harrison v. United States, 329 Fed.Appx. 179, 182 (10th Cir. 2009) (“Because the district court lacked jurisdiction over the claims raised in [the] complaint, those claims should have been dismissed without prejudice.”).
In addition, the court emphasizes the jurisdictional bars referenced in its July 24, 2023 Recommendation, ECF No. 35 (the “First Recommendation” or “First Rec.”), as those same jurisdictional bars appear to apply equally to your claims against the California Defendants:
First, the Rooker-Feldman doctrine and the domestic-relations exception both appear to bar review of the underlying state court child-support decision on which your claims against the California Defendants are based. See First Rec. at 10-12.
Second, it appears that the Eleventh Amendment deprives this court of subject-matter jurisdiction to review your claims against the California Superior Court and Judge Hurwitz and Mr. Minerich in their official capacities. See id. at 12-16. For the reasons outlined in the First Recommendation, the exceptions to Eleventh Amendment sovereign immunity do not appear to apply in this context. Id. Third, even if the California Defendants had been properly served, it appears that this court does not have personal jurisdiction over the California Defendants, who do not seem to have had “continuous or systemic contacts” with the State of Colorado or to have “purposefully availed” themselves of its laws. Id. at 16-20. As the court noted in its First Recommendation, your unilateral decision to move to Colorado does not create the requisite contacts between the California Defendants and this forum. Id. at 19.
Finally, the court would be remiss not to also highlight the doctrine of absolute judicial immunity, which provides that “[j]udges are absolutely immune from civil liability for judicial acts, unless committed in the clear absence of all jurisdiction.” Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000).
In submitting a future complaint, should you be allowed to do so, you should bear in mind these jurisdictional bars and defenses.
In light of the fact that the court has recommended dismissal of all of your claims against both the California Defendants and the Missouri Defendants (see generally First Rec.), the court also recommends that your Motion for Preliminary Injunction and Other Equitable Relief (ECF No. 18) be denied as moot. See, e.g., Maehr v. United States, No. 18-cv-022273-PAB-NRN, 2019 WL 4164872, at *4 (D. Colo. Sept. 3, 2019) (“Because the underlying claims will be dismissed, the motion for preliminary injunction must be denied as moot.”) (citation omitted); see also Rainey v. Thorstad, No. 12-cv-00945-CMA-MEH, 2012 WL 4481457, at *1 (D. Colo. Sept. 12, 2012) (explaining that “a preliminary injunction is intended to preserve the status quo until the Court has an opportunity to reach the merits.”).
CONCLUSION
For the reasons stated above, it is hereby respectfully RECOMMENDED that the Complaint, ECF No. 2, be DISMISSED WITHOUT PREJUDICE as to Defendants California Superior Court County of Orange, Lon F. Hurwitz, and Paul T. Minerich. The Court further RECOMMENDS that the Motion for Preliminary Injunction and Other Equitable Relief, ECF No. 18, be DENIED AS MOOT.
Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after service of a Magistrate Judge's order or recommendation, any party may serve and file written objections with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. §§ 636(b)(1)(A), (B); Fed.R.Civ.P. 72(a), (b). Failure to make any such objection will result in a waiver of the right to appeal the Magistrate Judge's order or recommendation. See Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).