Gerritsen v. Escobar Y Cordova

Decision Date21 September 1988
Docket NumberNo. CV85-5020-PAR.,CV85-5020-PAR.
Citation721 F. Supp. 253
PartiesJack GERRITSEN, Plaintiff, v. Javier ESCOBAR Y CORDOVA, et al., Defendants.
CourtU.S. District Court — Central District of California

Jack Gerritsen, Monterey Park, Cal., pro. per.

Robert C. Bonner, U.S. Atty., Stephen Petersen, Asst. U.S. Atty., Los Angeles, Cal., Vincent M. Garvey, Richard C. Stearns, Dept. of Justice, Civ. Div., Washington, D.C., Alberto Szekely, Mexico City, United Mexican States, Eduardo de-Ibarolla, Los Angeles, Cal., for defendant Consulado General de Mexico.

MEMORANDUM OF DECISION AND ORDER

RYMER, District Judge.

Plaintiff charges moving defendants Consulate General of the United Mexican States, Javier Escobar Y Cordova, Agustin Garcia Lopez Santaolalla, Enrique Guzman, and Salvador Uribe with engaging in a conspiracy to deprive him of his civil rights, acts of assault with a deadly weapon, battery, false imprisonment, kidnapping, intentional infliction of physical trauma, intentional infliction of emotional trauma, theft, destruction of property, and false arrest. Plaintiff's Preliminary Statement of Pre-Trial Contentions of Fact at 3. The dispute primarily arises out of plaintiff's distribution of leaflets and other activities around the Mexican Consulate in Los Angeles and defendants' efforts to stop these activities. Jurisdiction is alleged pursuant to 28 U.S.C. § 1351 (actions against consuls and vice consuls) and 28 U.S.C. §§ 1330(a), 1602-1611 (Foreign Sovereign Immunities Act).1 Defendants assert that this court lacks subject matter jurisdiction under either statute and therefore move for summary judgment.

Plaintiff filed his original complaint on July 30, 1985. It contained allegations against the moving defendants and President Miguel de la Madrid Hurtado of the United Mexican States; the alleged jurisdictional basis for the complaint was 28 U.S.C. § 1343. This court found that it lacked personal jurisdiction over President of Mexico and that it lacked subject matter jurisdiction under § 1343, accordingly, President de la Madrid was dismissed with prejudice and plaintiff's complaint was dismissed for lack of subject matter jurisdiction. Order at 11. In Gerritsen v. Hurtado, 819 F.2d 1511 (9th Cir.1987) the Ninth Circuit upheld the court's ruling on § 1343, but — believing that plaintiff was denied leave to amend — suggested 28 U.S.C. §§ 1330(a) and 1351 as other possible sources of jurisdiction and remanded the case.

Facts Not Genuinely Controverted

1. Plaintiff originally filed his complaint in this action on July 30, 1985.

2. Plaintiff filed his First Amended Complaint on October 16, 1987 and his Second Amended Complaint on December 23, 1987.

3. Plaintiff served the original complaint by having a clerk of this court mail the complaint to the Offices of the President of the United Mexican States. Gerritsen Decl., Exhibit C. This service was received in that office on August 20, 1985. Felix Decl. ¶ 7.

4. Plaintiff served the individual defendants as follows:

a) Javier Escobar — process server personally served him summons and complaint at the Mexican Consulate in San Diego, California, on August 12, 1985. Gerritsen Decl., Exhibit H.

b) Agustin Garcia — process server left summons and complaint with Enrique Silva at the Mexican Consulate in Los Angeles, California, on August 7, 1985. Id., Exhibit I.

c) Enrique Silva — process server personally served him summons and complaint at the Mexican Consulate in Los Angeles, California, on August 5, 1985. Id., Exhibit J. d) Salvador Uribe — process server left summons and complaint with Enrique Silva at the Mexican Consulate in Los Angeles, California, on August 7, 1985. Id., Exhibit K.

5. Relevant allegations in plaintiff's Pre-Trial Memorandum ¶ 2 against defendant Escobar are that:

a) on August 5, 1983 defendant approached plaintiff and told him that "action would be taken against him." Los Angeles police officers thereafter detained plaintiff for forty minutes while the officers spoke with defendant and others. SAC ¶ 31.

b) on September 20, 1983 defendant placed plaintiff under citizen's arrest and restrained plaintiff until the Los Angeles police arrived to take plaintiff into custody. SAC ¶ 36.

c) on March 15, 1984 defendant leased ten thousand square feet of open space around the Consulate. SAC ¶ 48.

d) on July 31, 1984 defendant grabbed plaintiff's shoulder to restrain him from distributing leaflets.

e) on December 2, 1983 defendant requested that Alexander H. Williams III of the Office of the United States Attorney for the Central District of California "take whatever measures were necessary to prevent Mr. Gerritsen from continuing to disturb the peace as well as the impairment of its the consulate's dignity." SAC ¶ 41.

6. Relevant allegations in plaintiff's Pre-Trial Memorandum ¶ 3 against defendant Garcia are that:

a) on March 15, 1984 defendant leased ten thousand square feet of open space around the Consulate. SAC ¶ 48.

b) on June 20, 1985 defendant threatened "to take more serious measures against plaintiff." Later on that day an employee of the consulate pointed a gun at plaintiff, who was standing twelve feet away. SAC ¶ 49.

7. Plaintiff makes no relevant allegations against defendant Silva in his Pre-Trial Memorandum. (Plaintiff states in his response to defendants' Interrogatory 13 that defendant Silva on June 28, 1983 "interrogated and intimidated" plaintiff.)

8. Relevant allegations in plaintiff's Pre-Trial Memorandum ¶ 5 against defendant Uribe are that:

a) on June 28, 1983 defendant struck plaintiff with his fists and feet. SAC ¶ 26.

b) on August 5, 1983 defendant pushed plaintiff down a flight of stairs. SAC ¶ 31.

c) on October 6, 1983 defendant punched and pushed plaintiff. SAC ¶ 37.

d) on October 25, 1983 defendant Uribe "attacks plaintiff," breaks his glasses, and tears his shirt. SAC ¶ 39.

e) on June 18, 1984 defendant Uribe pushed and punched plaintiff away from the consulate. SAC ¶ 44.

f) on June 20, 1985 defendant pointed a gun in a threatening manner at plaintiff. SAC ¶ 49.

g) on July 17, 1985 defendant struck plaintiff with a heavy metal cylinder. SAC ¶ 50.

h) on July 19, 1985 defendant struck plaintiff in the face. SAC ¶ 51.

i) on July 25, 1985 defendant struck plaintiff with a heavy metal sign. SAC ¶ 52.

j) on July 26, 1985 defendant struck plaintiff with his left foot. SAC ¶ 53.

k) on December 19, 1985 defendant struck plaintiff with two lengths of chain. SAC ¶ 58.

9. The individual defendants are either consuls or an employee of the consulate.

10. The Mexican government believes that the individual defendants were acting in an official capacity during their encounters with plaintiff. Rivas Decl. ¶ 7.

Possibly Controverted Facts that are not Material

1. Whether other employees or agents of the Mexican Consulate committed the acts alleged by plaintiff. Because plaintiff has not properly served the Consulate, these acts cannot give rise to liability.

Standard

Fed.R.Civ.P. 56(b) provides that a defending party may move for summary judgment if the pleadings and supporting material "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment in favor of the defendant is therefore appropriate if plaintiff fails to: 1) produce evidence to support the existence of all essential elements on which plaintiff bears the burden of proof; and 2) show that all disputes about material facts or necessary inferences from the facts could reasonably be resolved in favor of either party by the trier of fact. See, California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Matsushita v. Zenith Radio, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). See generally, Schwarzer, Summary Judgment and Case Management, 56 Antitrust Law Journal 213, 218 ("undisputed evidence submitted by a plaintiff may be insufficient to sustain a verdict which turns on a mixed question of law and fact under the applicable substantive law").

Defendants move for summary judgment on the grounds that 1) plaintiff has not effected proper service against any of the parties; 2) the court lacks subject matter jurisdiction over the individual defendants because they are immune from suit under the applicable provisions of the Vienna Convention on Consular Relations; and 3) the court lacks subject matter jurisdiction over the Consulate under the applicable provisions of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602, et seq. Finding the arguments that it reaches well taken, the court grants defendants' motions.

Service of Process

In its earlier ruling on these defendants' motion to dismiss the court found on the sparse record before it that plaintiff had failed to carry his burden of proving that he properly served any of these defendants. The court granted plaintiff one week to supply documentation that he had effected proper service; plaintiff did so. Defendants responded with further argument about why even the augmented record did not support a finding of proper service. Defendants brought the instant motion before the court had ruled on this issue. Based on all the papers that the parties have submitted on this issue, the court now finds that plaintiff has failed to serve properly any of the defendants.

1. The Individual Defendants

Service on individuals is governed by Fed.R.Civ.P. 4(d), which states in relevant part:

Service shall be made as follows:

(1) Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some
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