682 F.2d 1344 (9th Cir. 1982), 81-4212, Jackson v. Hayakawa

Docket Nº:81-4212.
Citation:682 F.2d 1344
Party Name: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.
Case Date:August 03, 1982
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1344

682 F.2d 1344 (9th Cir. 1982)

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.

No. 81-4212.

United States Court of Appeals, Ninth Circuit

August 3, 1982

Argued and Submitted April 16, 1982.

Page 1345

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.

Page 1346

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.

  1. 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.

    Page 1347

    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.

  2. 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...

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