Monday, January 9th, 2012 James Alan Bush 471 East Julian Street San Jose, California 95112

(408) 791-4866 United States District Court for the Northern District of California, San Jose Division ATTN: Martha Brown, Calendar Clerk, Courtroom 8 280 South First Street San Jose, California 95113 (408) 535-5346 In re Motions Hearing in Case No. 08-cv-01345 LHK [James Alan Bush v. Sunnyvale Department of Public Safety, et al.] on April 12th, 2011 at 1:30 P.M. in Courtroom 8, Judge Lucy H. Koh, presiding To Ms. Martha Brown, Calendar Clerk, Courtroom 8, United States District Court for the Northern District of California: Upon review of the docket in the above-referenced case, Docket Entry No. 166, which specifies the date for the hearing on a motion for relief from judgment, erroneously lists Docket No. 150 as the judgment from which relief is being sought; rather, it is an order, and, in particular, Docket No. 162. Also in Docket No. 166, the motion (which is actually a letter) referred to as Docket No. 165 should be changed to the docket number assigned to the attached letter (which can be considered a motion by the Court) once it is assigned. Accordingly, please correct the docket entry so that the Court will be prepared to hear a Motion for Relief from Order Granting Motion to Vacate Judgment In Part and Granting Intradistrict Transfer. Today, I filed a new notice of hearing (attached), explicitly stating which order is being challenged; please file and distribute the requisite number of copies in the case file on my behalf.

My sincerest gratitude for your timely attention to this matter,

James Alan Bush Plaintiff in pro per

Enclosure(s):

Notice of Hearing Letter to Judge Lucy Koh (revised) from Plaintiff, dated January 9th, 2012

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ATTACHMENT A
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James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 Plaintiff in pro per

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

James Alan Bush, Plaintiff, v. Sunnyvale Department of Public Safety, et al., Defendants.

Case No. 08-cv-01354 (PR) JF NOTICE OF HEARING

Judge Lucy H. Koh NOTICE OF HEARING

TO THE HONORABLE LUCY H. KOH, DISTRICT JUDGE, UNITED STATES DISTRICT COURT: PLEASE TAKE NOTICE that James Alan Bush, plaintiff in the above-captioned matter, has requested a hearing on a Motion for Relief from Order [Docket No. 162] in Courtroom 8 of the above-stated court, located at 280 South First Street, in San Jose, at 1:30 P.M. on April 12th, 2012. Dated: January 9th, 2012 By: X James Alan Bush Plaintiff in pro per 08-cv-01354 (PR) JF

NOTICE

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Monday, January 9th, 2012 James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 United States District Court for the Northern District of California, San Jose Division ATTN: Judge Lucy H. Koh 280 South First Street San Jose, California 95113 (408) 535-5346 In re Docket No. 162, Case No. 08-cv-01345 LHK [James Alan Bush v. Sunnyvale Department of Public Safety, et al.] To the Honorable Lucy H. Koh, District Judge, United States District Court for the Northern District of California: I am in receipt of the Order Granting Motion to Vacate Judgment In Part, which was entered on December 14th, 2011, in the above-referenced case [Docket No. 162], and which vacates the order of dismissal against all but one defendant for the failure to file proof of service of summons [Docket No. 149]. This letter seeks to clarify the procedural background as it pertains to the service of summons to the remaining defendants, in order that the Court may take into account all relevant circumstances pertaining thereto, and make a more equitable determination in its decision to dismiss this case against those defendants. First, the last order issued incorrectly states that I filed a motion to reverse the prior order of dismissal for failure to meet a court-imposed deadline for filing proof of service of summons to the defendants; it then challenges its sufficiency, stating that the plaintiff does not dispute that...he still has yet to file any proofs of service. Indeed, plaintiff does not even state that he has, in fact, served any of the defendants. On the contrary, it was by letter that the Court was notified that the order setting a deadline to file proof of service of summons to the defendants had not been received, requesting additional time to file the requisite proofs of service in lieu of a judgment of dismissal for failure to comply with the order (see attached letter); however, by parenthetically pointing out that at least one such proof of service had already been filed prior to the issuance of the order (which was the basis for the reversal of the prior order of dismissal), it refutes the contention that any proof of service has yet to be filed; moreover, its request that a new deadline for filing proof of service for the remaining defendants be set implies that these defendants were served. Indeed, all defendants were served by waiver of service of summons in that time and in the manner prescribed by Rule 4(d)(1) of the Federal Rules of Civil Procedure; and, even though, to-date, only one defendant has returned an executed waiver, service of summons is proper, in that a failure to prove service does not affect the validity of service [Fed.R.Civ.P. 4(l)(3)]. Moreover, the county defendants have acknowledged in open court their receipt of the notice and 1 request, which constitutes proper service per Ecret v. Diamond, D.C.Wash. 2007, 2007 WL 2743432, *2. The lengthy delay in filing the proofs of service is due to other circumstances beyond my control, specifically, an unexpected three-year incarceration as a pretrial detainee by Defendant Santa Clara County Department of Correction. My arrest by Defendant San Jose Police Department occurred just one day prior to the first case status hearing, at which I intended to request that the Court order the service of formal process to the defendants at their expense (which is the next procedural step in the service of summons by waiver); otherwise, there was neither a lack of diligence in pursuing this case, nor any willful or deliberate misconduct to which the delay in filing the proofs of service can be attributed. Furthermore, the record does not show that any of the few deadlines established by the Court have been missed, except
1 Although the Santa Clara County Counsel has acknowledged its receipt of the notice of lawsuit and request for waiver of service of summons in an unrelated criminal proceeding in June, 2010, multiple requests for a stipulation to this fact have so far gone unanswered.

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for the deadline that is the subject of the original order of dismissal; and, in that case, I notified the Court of its error in issuing the order immediately upon discovery. In fact, the record will show that, since my release from custody, I have actively prosecuted this case, in that I (1) promptly addressed the erroneous decline of the request for entry of default by clerk against Defendant Long Thang Cao, (2) notified the Court of its failure to properly address correspondence, and (3) have attempted to schedule several hearings in order to resolve the outstanding issues that arose while incarcerated, such as the issue that is the subject of this letter. Any perceived delay in resolving these issues, and any failure to successfully schedule hearings can be attributed to the transfer of the formerly presiding judge, the Honorable Jeremy Fogel, to another district, and the unexpected (and inconvenient) change of venue to Oakland; it was while this transfer was pending (approximately two months) that I was informed by the Clerk that the case was temporarily stayed and that no hearings could be scheduled until the case was reassigned to another judge. Accordingly, I am hereby requesting that this Court permit the late filing of the remaining proofs of service, as it originally intended on September 29th, 2011 [Docket No. 147]. Sincerely,

James Alan Bush (Plaintiff in pro per)

Enclosure(s):

Letter to Judge Phyllis J. Hamilton (Attachment A, 1 page) Order Granting Motion to Vacate Judgment In Part... (Attachment B, 3 pages)

In the order, the Court erroneously implies that the plaintiff was ordered twice to file proof of service of summons on the defendants, both on September 29th, 2011, and on November 4th, 2011.

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ATTACHMENT A
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Monday, November 21st, 2011 James Alan Bush 471 East Julian Street San Jose, California 95112 United States District Court for the Northern District of California, Oakland Division ATTN: Judge Phyllis J. Hamilton 1301 Clay Street Oakland, California 94612 In re C 08-01345 PJH [Bush v. Sunnyvale Department of Public Safety, et al.] To the Honorable Phyllis J. Hamilton, Judge, United States District Court: This letter concerns both the order of dismissal and the order transferring venue in the above-referenced case, by which this case was dismissed for the failure of the plaintiff to file proof of service of summons to the defendants, and by which this case was transferred from the San Jose Division to the Oakland Division, respectively. First, I am in receipt of your order of dismissal, which dismissed this case for the failure of the plaintiff to file proof of service of summons to the defendants by the September 29th, 2011, deadline per the order of the Court; unfortunately, I did not receive any such order from the Court, which is directly attributable to the intermittent failure of the court to properly address its correspondence [see Docket No. 148; see also Docket Nos. 139 and 140]. My address was at all times relevant kept current with the Clerk. In fact, I received the order of dismissal, without ever having contacted the Clerk to advise it of its error prior to its recent discovery, and certainly without having been made aware of any previous such error by the Clerk; moreover, I received the order transferring venue, which preceded the order to file the requisite proofs of service. This clearly indicates that a clerical error on the part of the Clerk caused my failure to meet my court obligations, and that it was not a failure on my part to update my address with the Clerk. However, regardless of my awareness of my obligation to file the requisite proofs of service per the order of the Court, or of the Courts failure to properly deliver the order, the docket does show that a waiver of service of summons was signed and filed by Defendant Long Thang Cao [Docket No. 134], proving that at least one proof of service of summons is filed, and demonstrating that at least one defendant has been served. Also, on September 26th, 2011, the Court transferred this case from the San Jose Division to the Oakland Division, presumably, pursuant to Title 28 U.S.C. 1404(a), which allows the transfer of any civil action to any other district where it might have been brought; however, this statute also provides for the consideration of the burden such a transfer places on the parties, and, historically, such consideration defers primarily to the convenience of the transfer to the plaintiff. Therefore, I request that the court consider the following: if the case remains assigned to the Oakland Division, I will be unable to afford the added travel and postage expenses as a pro se litigant, in forma pauperis. This case requires numerous filings and hearings due to the unusually high number of both defendants and issues to be adjudicated. The relatively short walking distance to the San Jose courthouse from my residence has made it affordable to file papers and attend hearings; however, to reach the Oakland courthouse, I would be required to travel a significantly greater distance. Accordingly, I am hereby requesting that the order of dismissal be vacated and the order to file the remaining proofs of service be reissued, and that this case be reassigned to the San Jose Division for all further proceedings, for all of the reasons stated above. Sincerely,

James Alan Bush (Plaintiff in pro per) Page 1 of 1

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ATTACHMENT B
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