1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 TAYLOR PACKWOOD, et al., Case No. 23-cv-01003-MMC

8 Plaintiffs, ORDER DIRECTING PLAINTIFFS TO SHOW CAUSE WHY AMENDED 9 v. COMPLAINT SHOULD NOT BE DISMISSED; CONTINUING STAY OF 10 COUNTY OF CONTRA COSTA, et al., PROCEEDINGS 11 Defendants.

12 13 On March 2, 2023, the above-titled action was transferred to this district from the 14 District of Nevada under the "first-to-file" rule, which rule allows a district court to transfer 15 an action to a district in which a complaint involving the same parties and same issues is 16 pending. (See Order, filed March 2, 2023 (Doc. No. 55).) In particular, the Nevada 17 district court found transfer was appropriate in light of the pendency, in this district, of 18 Civil Case No. 22-2741, as such case had been filed prior to plaintiffs' filing the instant 19 action in Nevada and involves the same parties and issues. 20 In particular, both the amended complaint ("AC") filed in the instant action (see 21 Doc. No. 5) and amended complaint filed in Civil Case No. 22-2741 consist of claims 22 arising from the removal of plaintiff Andrea Wood's ("Wood') three children from her 23 custody, the subsequent child dependency proceedings in state court, and custodial 24 conditions applicable to Taylor Packwood ("Packwood"), Wood's oldest child. The two 25 actions differ only in that plaintiffs assert in Civil Case No. 22-2741, but not in the instant 26 case, claims against Mary P. Carey, Wood's former attorney, and that the claims 27 asserted in the amended complaint filed in Civil Case No. 22-2741, but not in the instant 1 Statement" signed by Wood, that provide some additional detail in support of their claims. 2 In all other respects, the claims in the two actions are identical. Specifically, the Causes 3 of Action asserted in the amended complaint filed in Civil Case No. 22-2741 and brought 4 against the County of Contra Costa, the Contra Costa Children and Family Services, the 5 Contra Costa County Office of the Sheriff, David Livingston, Kellie Case, Edyth Williams, 6 Cecelia Gutierrez, and Acadia Chidi (collectively "County Defendants"), as well as 7 against Erica Bains and Ravinder Bains (collectively, "the Bains"), are also asserted in 8 the instant case against those same defendants. 9 On March 6, 2023, the Court, noting that all defendants named in Civil Case No. 10 22-2741 had filed motions to dismiss and that those motions were, as of that date, 11 pending, stayed the instant action pending resolution of said motions to dismiss. By 12 order filed concurrently herewith in Civil Case No. 22-2741, the Court has resolved those 13 motions. At this point in the proceedings, the Court, having read and considered the AC 14 in the instant action, finds it appropriate to direct plaintiffs to show cause why such 15 pleading should not be dismissed in its entirety. See Wong v. Bell,

, 361-62 16 (9th Cir. 1981) (holding district court may "act on its own initiative to note the inadequacy 17 of a complaint and dismiss it" after first affording the plaintiff an opportunity to respond 18 thereto). 19 A. Packwood 20 By order filed concurrently herewith in Civil Case No. 22-2741, the Court has 21 dismissed each of Packwood's claims asserted in that case, with two exceptions. 22 Accordingly, Packwood will be directed to show cause why each of his claims 23 asserted in the instant action, with the exception of his Fourth Amendment claim against 24 Cecelia Gutierrez ("Gutierrez") and David Livingston ("Livingston"), and his state law 25 claims against the Bains, should not be dismissed for the reasons set forth in the Court's 26 order resolving the motions to dismiss filed in Civil Case No. 22-2741. With regard to 27 Packwood's Fourth Amendment claim against Gutierrez and Livingston, and his state law 1 should not be dismissed as duplicative of his remaining claims in Civil Case No. 22-2741. 2 See Adams v. California Dep't of Health Services,

, 688 (9th Cir. 2007) 3 (holding "[p]laintiffs generally have no right to maintain two separate actions involving the 4 same subject matter at the same time in the same court and against the same 5 defendant"). 6 Additionally, as to the Bains, Packwood will be directed to show cause why his 7 claims against those two individuals should not be dismissed for failure to serve, see Fed. 8 R. Civ. P. 12(b)(5), as the sole manner of service assertedly employed, specifically, 9 "posting documents" at their home (see Doc. No. 23), is not a recognized form of service 10 under the Federal Rules of Civil Procedure, see Fed. R. Civ. P. 4(m). 11 B. Wood 12 By order filed concurrently herewith in Civil Case No. 22-2741, the Court has 13 granted Wood's motion to voluntarily dismiss her claims asserted therein, and, 14 consequently, has made no determination as to the viability of those claims. 15 To the extent the Court, in Civil Case No. 22-2741, dismissed claims asserted by 16 Packwood therein, however, the Court's reasoning applies equally to Wood, and, 17 accordingly, Wood will be directed to show cause why each of the claims asserted in the 18 instant action, with the exception of her Fourth Amendment claim against Gutierrez and 19 Livingston, and her state law claims against the Bains, should not be dismissed for the 20 reasons set forth in the Court's order resolving the motions to dismiss filed in Civil Case 21 No. 22-2741. 22 With respect to her Fourth Amendment claim against Gutierrez and Livingston, 23 Wood will be directed to show cause why that claim should not be dismissed for lack of 24 standing, as "Fourth Amendment rights are personal rights which . . . may not be 25 vicariously asserted," see Rakas v. Illinois,

(1987), and Wood, 26 while alleging Packwood was seized within the meaning of the Fourth Amendment, does 27 not allege she was seized or otherwise subjected to any asserted deprivation of her 1 With respect to her state law claims against the Bains, which claims are predicated 2 on Packwood's "removal from his home" and "his subsequent detention" (see Amended 3 || Complaint { 78), Wood will be directed to show cause why such claims should not be 4 || dismissed for lack of standing, as Wood does not assert she was "removed" or placed in 5 || "detention" by anyone, let alone as a result of some action on the part of the Bains. See 6 || Andrews v. County of Hawaii,

, at *8 (D. Haw. February 9, 2012) 7 || (holding a plaintiff does not have standing to assert false arrest claim based on arrest of 8 || family member). Additionally, Wood will be directed to show cause why her claims 9 || against the Bains should not be dismissed for failure to serve, see Fed. R. Civ. P. 10 || 12(b)(5), as the sole asserted manner of service employed, specifically, "posting 11 documents" at their home (see Doc. No. 23), is not a recognized form of service under g 12 || the Federal Rules of Civil Procedure, see Fed. R. Civ. P. 4(m). CONCLUSION 14 Plaintiffs are hereby DIRECTED to show cause, in writing and no later than April 2 15 || 28, 2023, why the amended complaint should not be dismissed for the reasons stated a 16 || above. g 17 Lastly, the Court finds it appropriate to continue the stay of proceedings imposed S 18 || by its order of March 6, 2023. Specifically, with the exception of the filing of plaintiffs’ 19 respective responses to the instant order to show cause, no motions or briefs shall be 20 || filed and no discovery shall be sought or exchanged in the instant case. Any party 21 seeking leave from the stay must first file an administrative motion pursuant to Civil Local 22 Rule 7-11. 23 IT IS SO ORDERED. 24 25 || Dated: April 7, 2023 fab, Chat IME M. CHESNEY 26 United States District Judge 27 28