Declue v. Family Law Services

Background

Alan Declue filed this action on August 18, 2020, asserting claims under 42 U.S.C. § 1983 and state law arising from a custody dispute with Valerie DeClue concerning their minor daughter. The complaint named public defendants, including Alameda County, the Alameda County District Attorney’s Office, Nancy O’Malley, Judge Clay, the City of Livermore, Michael Harris, and Paul Giacometti. It also named private defendants Valerie DeClue, Family Law Services, Inc., Terra Firma Diversion Services, and Bertha Cuellar.

On October 30, 2020, the court dismissed all federal claims against the public defendants with prejudice on grounds that included various immunities, the Rooker-Feldman doctrine, the statute of limitations, and failure to state a sufficient claim. The court dismissed the related state-law claims without prejudice after declining to exercise supplemental jurisdiction.

Declue then filed an objection to that order and a motion for leave to file an amended complaint. He sought to add facts concerning two October 2019 letters to the state court and a question about allegedly dishonest or questionably insurable activity. He had not filed the promised amended complaint.

Reconsideration and Amendment

The court analyzed the filings both as a possible request for reconsideration under Local Rule 7-9 and as a motion for leave to amend under Federal Rule of Civil Procedure 15. It denied any request to reconsider the October 30 order because Declue had not obtained permission to seek reconsideration, had not identified a qualifying new fact, and had not shown that the October 2019 letters would change the prior reasons for dismissing the public defendants’ claims.

The court also denied the motion for leave to amend. To the extent Declue sought to amend claims against the public defendants, the court found amendment futile because additional factual allegations would not alter the legal grounds for dismissal. The court further found that the proposed facts appeared to concern only the state court and Judge Clay and did not appear related to the private defendants, who were the remaining defendants.

Service of Process

Federal Rule of Civil Procedure 4(m) generally requires service within 90 days after filing. The court found that Declue had not filed completed summonses showing that he corrected service problems involving Valerie DeClue, Family Law Services, and Terra Firma Diversion Services. The clerk had previously stated that Declue mailed, but did not properly serve, Valerie and Family Law Services, and that his submission did not identify a qualifying agent served for Terra Firma.

The court ordered Declue to explain why the claims against those three defendants should not be dismissed for failure to timely serve them. It also extended the time for service, allowing him instead to properly serve those defendants and file amended proofs of service. The court reminded him that a party may not personally serve the summons and complaint.

As to Bertha Cuellar, the court found the proof of service ambiguous because one proof appeared to describe service on both Terra Firma and Cuellar without making clear whether Cuellar herself had been served. The court ordered Declue to file proof showing service on Cuellar specifically, or to explain why the claims against her should not be dismissed for failure to timely and properly serve her. The court also noted that the clerk had withdrawn an earlier entry of default against Cuellar because Declue had not provided documents showing a sum certain.

Disposition

The court denied Declue’s motion for leave to amend. It ordered him to respond to the order to show cause by January 15, 2021, or alternatively to file amended proofs showing proper service on the private defendants. The order states that if he failed to take either step on time, the court would dismiss the remainder of the case with prejudice under Rule 41(b) for failure to prosecute.