Mascorro v. The County of San Diego

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELOY MASCORRO, Case No.: 21-cv-2012-RSH-DDL 12 Plaintiff, ORDER GRANTING IN PART 13 v. PLAINTIFF’S MOTION TO APPOINT U.S. MARSHAL SERVICE 14 THE COUNTY OF SAN DIEGO, et al., AS PROCESS SERVER 15 Defendants. [ECF No. 66] 16 17 18 19 On June 7, 2025, Plaintiff filed his First Amended Complaint (“FAC”) in this action. 20 ECF No. 64. On June 9, 2025, the Clerk of Court issued the summons as to Plaintiff’s FAC. 21 ECF No. 65. In the instant Motion, Plaintiff requests that the Court appoint the U.S. 22 Marshal Service to effect service of his FAC. See ECF No. 66. For the reasons below, the 23 Court grants in part Plaintiff’s motion. 24 I. LEGAL STANDARD 25 “Rule 4 of the Federal Rules of Civil Procedure governs the commencement of an 26 action and the service of process.” Emp. Painters’ Tr. v. Ethan Enters., 480 F.3d 993, 999 27 (9th Cir. 2007). “Rule 5, in turn, governs service of every pleading subsequent to the 28 original complaint unless the court otherwise orders because of numerous defendants.” Id. 1 (internal quotation marks omitted). Service of an amended complaint is permitted under 2 Rule 5 “if the original complaint was properly served and the defendant has made an 3 appearance in the action.” Bricklayers & Allied Craftworkers Loc. Union No. 3 v. 4 Palomino, No. C09-01589-CW DMR, 2010 WL 2219595, at *3 (N.D. Cal. June 2, 2010) 5 (emphasis in original); see Emp. Painters’ Tr., 480 F.3d at 995–96 (“[A]n amended 6 complaint can often be served in the same manner as any other pleading if the original 7 complaint is properly served and the defendants appeared in the first instance.”). 8 II. ANALYSIS 9 As Plaintiff has been granted IFP status, he is entitled to have service of process 10 effected by the U.S. Marshal Service on his behalf as follows. See 28 U.S.C. § 1915(d) 11 (“The officers of the court shall issue and serve all process, and perform all duties in [IFP] 12 cases.”). 13 A. Defendant County 14 Defendant County was served with Plaintiff’s original Complaint and has appeared 15 in this action. ECF Nos. 61; 63. Defendant County was also served with Plaintiff’s FAC 16 and has responded by filing a motion to dismiss. ECF No. 68. For these reasons, it is 17 unnecessary for the Court to appoint the U.S. Marshal Service to serve Plaintiff’s FAC on 18 the County. See Fed. R. Civ. P. 5(b)(2)(E) (authorizing service by “sending it to a registered 19 user by filing it with the court’s electronic-filing system or sending it by other electronic 20 means that the person consented to in writing.”); Civ. L.R. 5.4(c) (“The NEF that is 21 automatically generated by the Court’s Electronic Filing System constitutes service of the 22 filed document on Filing Users.”). 23 B. Defendants Sherriff’s Department and CLERB 24 Defendants the San Diego County Sheriff’s Department (“Sheriff’s Department”) 25 and the Citizen’s Law Enforcement Review Board (“CLERB”) were never served with 26 Plaintiff’s original Complaint. See ECF No. 1. 27 The Court therefore appoints the U.S. Marshal Service to effect service of Plaintiff’s 28 FAC on the Sheriff’s Department and the CLERB. Plaintiff is DIRECTED to complete 1 file a Form 285 for these defendants as completely as accurately as possible on or 2 || before August 14, 2025. Upon receipt, the Clerk’s Office is DIRECTED to transmit the 3 ||completed forms, along with the summons and Plaintiff's FAC, to the U.S. Marshal Service 4 || for service. 5 C. DOE Defendants 6 The remaining defendants named in Plaintiff's FAC are Doe Defendants. See FAC 7 || at 2-3. To the extent Plaintiff is requesting that the Court appoint the U.S. Marshal Service 8 ||to effect service on these defendants, Plaintiff's request is premature. A Doe Defendant 9 “cannot be served with process until he or she is identified by his or her true name. The 10 burden remains on the plaintiff to identify the defendant; the Court will not undertake to 11 |/investigate the name and identity of an unnamed defendant.” Wilkins v. Santa Clara 12 || Sheriffs Dep’t, No. 20-CV-03256-EMC, 2022 WL 2834290, at *3 (N.D. Cal. July 20, 13 2022); Menefee v. Tigard Police Dep’t, No. 3:20-CV-01497-AC, 2020 WL 6547640, at *2 14 Or. Nov. 6, 2020) (“The burden of identifying and serving any defendant remains at all 15 || times on the plaintiff, however, and the court will not undertake to investigate the name 16 identity of an unnamed defendant.”’). 17 IT IS SO ORDERED. : ‘ Dated: July 22, 2025 Febut C / 0 Hon. Robert S. Huie United States District Judge 21 22 23 24 25 26 27 28