Jackson v. Hayakawa

Citation682 F.2d 1344
Decision Date03 August 1982
Docket NumberNo. 81-4212,81-4212
Parties5 Ed. Law Rep. 747 Charles JACKSON, et al., Plaintiffs, and Lonnie Daniels, Anthony Greene and Jean Simmons, Plaintiffs-Appellants, v. Samuel I. HAYAKAWA, former Acting President and former President of San Francisco State College, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Peter Pursley, San Francisco, Cal., for plaintiffs-appellants.

Matthew Boyle, Deputy Atty. Gen., San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before GOODWIN and POOLE, Circuit Judges, and WILLIAMS, * District judge.

GOODWIN, Circuit Judge.

Plaintiffs appeal a judgment dismissing their civil rights action against individual past and present members of the Board of Trustees of San Francisco State College (now called the California State University at San Francisco).

The issues are: (1) whether this court's decision in Jackson v. Hayakawa, 605 F.2d 1121 (9th Cir. 1979), cert. denied 445 U.S. 952, 100 S.Ct. 1601, 63 L.Ed.2d 787 (1980), prevents the district court from dismissing this action; (2) whether defective service of process was fatal to the claims against certain defendants; and (3) the extent to which defendants San Francisco State College, the Board of Trustees, and trustees in their official capacity are protected from liability by the Eleventh Amendment.

The original complaint was filed in 1972, and the action has not yet come to trial. Four amended complaints have been filed. This is the second appeal to this court.

The facts underlying this litigation are presented in Jackson v. Hayakawa, 605 F.2d at 1123-24. In 1968, the Black Students' Union initiated a student-faculty strike. On January 23, 1969, a rally was held on campus in defiance of a ban announced by the then President of San Francisco State College, S. I. Hayakawa. The police arrested four hundred persons.

A number of actions were filed seeking damages for the arrests and subsequent disciplinary proceedings. In Wong v. Hayakawa, 464 F.2d 1282 (9th Cir. 1972), cert. denied, 409 U.S. 1130, 93 S.Ct. 938, 35 L.Ed.2d 263 (1973), the court found generally that the disciplinary procedures did not violate due process. Due process was violated where decisions to discipline were based entirely on "a police report that did not show any evidence of misconduct on the part of the plaintiffs." Jackson v. Hayakawa, 605 F.2d at 1124.

Plaintiffs first filed a class action on March 21, 1972. The third amended complaint filed in 1975 contained five claims: (1) unlawful discriminatory funding of black organizations at the college; (2) unlawful arrests; (3) unlawful blacklisting; (4) unlawful disciplinary proceedings, and (5) unlawful interference in student elections.

In 1977, the district court granted summary judgment for defendants on all five claims. On appeal this court affirmed the summary judgment on the claims for unlawful arrests, unlawful blacklisting, and discriminatory funding. In Jackson v. Hayakawa, 605 F.2d at 1129, we reversed the summary judgment on the claim based upon unlawful disciplinary proceedings. We held that plaintiffs could rely on the limited due process holding of Wong v. Hayakawa, 605 F.2d at 1129. (The claim of unlawful interference in student elections was abandoned on appeal.)

On remand, the district court again dismissed the action on the remaining claim. The district court relied upon Eleventh Amendment immunity, defective service of process against certain defendants in their individual capacities, expiration of the statute of limitations against certain defendants, and failure to state a claim either under 42 U.S.C. § 1981 or 42 U.S.C. § 1985. Plaintiffs appeal this judgment.

A. Res Judicata

Plaintiffs claim that the district court failed to apply this court's decision in Jackson v. Hayakawa, 605 F.2d 1121, when the court dismissed this action a second time. In Jackson this court did not address the issue of Eleventh Amendment immunity or defective service of process because these points had not been raised in defendants' earlier motion for summary judgment.

If a claim remains against any defendant, then plaintiffs can rely on the limited due process holding of Wong v. Hayakawa.

The discussion of "good faith immunity" in Jackson v. Hayakawa, 605 F.2d at 1129, n.11, does not indicate that this court resolved the Eleventh Amendment immunity issue raised here. Plaintiffs confuse Eleventh Amendment immunity with "good faith" governmental immunity accorded certain defendants in § 1983 actions.

B. Defective Service of Process

Defendants moved to dismiss S. I. Hayakawa, Ronald Reagan, Glenn Dumke, Frank Dollard and Edward Duerr on grounds that plaintiffs did not properly serve them as individuals under Fed.R.Civ.P. 4, or that if they were served, service was in their official capacities only. The district court dismissed Ronald Reagan and Glenn Dumke both in their individual and official capacities. The district court also found that Hayakawa, Dollard and Duerr were before the court only in their official capacities. The Board of Trustees as an entity was also subject to the jurisdiction of the court.

Defendants must be served in accordance with Rule 4(d) of the Federal Rules of Civil Procedure 1, or there is no personal jurisdiction. Beecher v. Wallace, 381 F.2d 372 (9th Cir. 1967). Rule 4(a) provides that defendants must be personally served or served in compliance with alternatives listed in 4(d) (6) or 4(d)(7). Neither actual notice, Martin v. N. Y. State Dept. of Mental Hygiene, 588 F.2d 371, 373 (2nd Cir. 1978), nor simply naming the person in the caption of the complaint, Gozdanovic v. Civil Serv. Com'n for City of Pittsburgh, PA, 361 F.Supp. 504, 507 (W.D.Pa.1973), will subject defendants to personal jurisdiction if service was not made in substantial compliance with Rule 4. Serving an entity such as the Board of Trustees or the college will not automatically confer personal jurisdiction over individual defendants in any capacity.

Defendants can waive the defect of lack of personal jurisdiction by appearing generally without first challenging the defect in a preliminary motion, Hays v. United Fireworks Mfg. Co., 420 F.2d 836, 844 (9th Cir. 1969), or in a responsive pleading, Sellers v. McCrane, 55 F.R.D. 466 (E.D.Pa.1972). Jurisdiction attaches if a defendant makes a voluntary general appearance, as by filing an answer through an attorney, Amen v. Dearborn, 532 F.2d 554, 558, n.7 (6th Cir. 1976); Martin v. N. Y. State Dept. of Mental Hygiene, 588 F.2d at 373.

Plaintiffs claim jurisdiction over defendants Hayakawa, Dumke, Reagan, Duerr and Dollard, and the trustees both in their individual and official capacities because these defendants were either properly served or, if not properly served, they waived any defect in service or personal jurisdiction by appearing generally and by not raising these defenses in earlier proceedings.

1. S. I. Hayakawa

The district court found that Hayakawa was before the court only in his official (a) Hayakawa was served on March 27, 1972. The district court said that even though this service was defective, Hayakawa waived the defect by failing to raise it before the filing of a responsive pleading. In fact, as plaintiffs indicate, service of process may not have been defective. Rule 4(d)(7) allows service in accordance with the law of the state in which the district court is located. Cal.Code Civ.P. § 415.20 2 permits personal service by serving a person apparently in charge of a defendant's office during usual office hours. Someone in charge of Hayakawa's office apparently was served.

capacity. The district court found that he was never served in his individual capacity and did not waive the lack of personal service in his individual capacity. There are three related questions here: (a) was service of process defective; (b) was he served in his official capacity or both his official and individual capacity; and (c) did he waive service of process in his individual capacity?

The district court found that Hayakawa did not waive his defense to personal jurisdiction in his individual capacity. It is not clear from the multiple complaints in this case when, if ever, Hayakawa or others were sued in their individual capacities. The original complaint, the first amended complaint and the second amended complaint appear to sue the defendants only in their official capacities.

The third amended complaint and the fourth amended complaint state in their captions that individual defendants were sued in both their official and personal capacities. These papers, however, were filed long after service had been made. New service would be necessary in order to satisfy the due process requirement of notice if there was to be a change in the status of defendants. See Harkless v. Sweeny Ind. Sch. Dist. of Sweeny, Tex., 554 F.2d 1353, 1360 (5th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 507, 54 L.Ed.2d 452 (1977).

The strictures of the Eleventh Amendment make it important that the court determine whether individual defendants are being sued in their individual or official capacities or both. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), permits certain kinds of actions against state officials in their individual capacities while recognizing that the Constitution prohibits actions against the state as such. This fiction is necessary to enforce federal constitutional law. Great Western United Corp. v. Kidwell, 577 F.2d 1256, 1265 (5th Cir. 1978). L. Tribe, American Constitutional Law 146 (1978).

Hayakawa did not appear in person in any proceeding and did not authorize a personal lawyer to represent him in his individual capacity. In response to the fourth amended complaint the attorney general filed a special appearance challenging as defective the service of process against...

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