Mountains of Spices LLC v. Lafrenz ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mountains of Spices LLC, No. CV-21-01497-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Sara Lihong Wei Lafrenz, Xiuzhu Wei, Maywind Trading LLC, Jian Peng, Qishen 13 Chen, and Jianjun Wang, 14 Defendants. 15 16 On September 2, 2021, this Court required Plaintiff to file a supplement to the 17 complaint because the original complaint did not properly plead jurisdiction in this case. 18 (Doc. 8). In response to that Order, Plaintiff filed an amended complaint and pleaded 19 jurisdiction based on information and belief. The Court then issued an Order which 20 included: 21 While the Court will not dismiss this case at this time, the Court finds that Plaintiff has not established that this Court has subject matter 22 jurisdiction. Thus, Plaintiff will be required to, within six months, file a supplement to the amended complaint establishing federal subject matter 23 jurisdiction. Plaintiff must use these six months to do whatever discovery is necessary to ascertain the citizenship of each Defendant. If Plaintiff fails to 24 file this required supplement, or if Plaintiff fails to establish federal subject matter jurisdiction within the deadline, this case will be dismissed without 25 prejudice. 26 (Doc. 10). 27 Thereafter, the 90 days to serve the complaint found in Federal Rule of Civil 28 Procedure 4(m) ran, with service having been accomplished on only one Defendant. Thus, 1 the Court issued the following Order: 2 Counsel…filed this case in Federal Court in Arizona on behalf of Plaintiff on August 31, 2021. Thus, service was due on the six Defendants 3 by November 29, 2021. See Fed. R. Civ. P. 4(m). The Court will summarize the record regarding service for each Defendant. 4 There is no proof of service on file for Sara Lihong Wei Lafrenz. 5 There is no proof of service on file for Xiuzhu Wei. 6 There is no proof of service on file for Maywind Trading LLC. 7 There is no proof of service on file for Jian Peng. 8 On November 12, 2021, Jianjun Wang, pro se, has filed an answer, 9 which includes a motion to dismiss. (Doc. 13). Specifically, the motion to dismiss is at pages 8-11, which were docketed in reverse order. Plaintiff has 10 not responded to this document. 11 A person named Qishen Chen was served with a summons in this case. (Doc. 11). Qishen Chen, pro se, returned this summons to the Clerk’s office 12 and explained that he did not believe he was the person identified in the complaint. (Id.). Qishen Chen also stated that he had reached out to 13 Plaintiff’s counsel, who failed to respond to him. Proof of service for service on Qishen Chen has never been filed with this Court. 14 Qishen Chen suggested, seemingly based on his own research, that the 15 person Plaintiff really seeks is Qisheng Chen. (Id.). Thereafter, Plaintiff filed a proof of service for Quisheng Chen (a third spelling of this name), at 16 the address suggested by Qishen Chen. (Doc. 12). As indicated above, the only version of this name that appears in the complaint and amended 17 complaint is Qishen Chen. 18 Before counsel uses this Court’s subpoena power to compel someone to respond in Federal Court, the Court deems it to be counsel’s duty to make 19 sure counsel is serving the right person. At this point, there is evidence that Plaintiff may have served the wrong person when Plaintiff served Qishen 20 Chen (Doc. 11), but Plaintiff has not moved to quash this service if it was in fact mistaken. There is also evidence that Plaintiff served Quisheng Chen, 21 who is not named as a Defendant in the complaint. More concerningly, counsel appears to have used an address suggested by a pro se to serve this 22 non-defendant. 23 The Court will quash the proof of service at Doc. 12 because the “defendant” named therein is not a defendant named in the complaint. The 24 Court will also quash the service on the Qishen Chen who filed Doc. 11 (even though Plaintiff did not file this proof of service in the record), because the 25 Court deems Plaintiff’s efforts to serve a “new” Qishen Chen to be an admission that the Qishen Chen in Doc. 11 is the wrong person. 26 The Court will further require Plaintiff to show cause why all 27 Defendants who have not been timely served should not be dismissed. 28 Thus, 1 IT IS ORDERED that the service evidenced by Doc. 11 is quashed. The Qishen Chen who filed Doc. 11 has no further obligation to respond in 2 this case unless he is served with a new summons and complaint. (Plaintiff may not re-serve this Qishen Chen without prior Court approval). The Clerk 3 of the Court shall send a copy of this Order to Qishen Chen at the address listed in Doc. 11 at page 24. 4 IT IS FURTHER ORDERED that the proof of service at Doc. 12 is 5 quashed because it purports to serve someone who is not named as a Defendant in the amended complaint. 6 IT IS FURTHER ORDERED that, by December 9, 2021, Plaintiff 7 shall show cause why Defendants Qishen Chen, Sara Lihong Wei Lafrenz, Xiuzhu Wei, Maywind Trading LLC, and Jian Peng should not be dismissed 8 for failure to serve within the time limits of Federal Rule of Civil Procedure 4(m). 9 IT IS FURTHER ORDERED that Plaintiff shall respond to the 10 motion to dismiss at pages 8-11 of Doc. 13 by December 9, 2021 or the Court will deem the failure to respond to be consent to the motion being granted. 11 See Local Rule Civil 7.2(i). The Clerk of the Court shall update the docket to reflect that Doc. 13 is both an answer and a motion to dismiss. 12 (Doc. 14). 13 Plaintiff has responded to the Order at Doc. 14 and requested an extension of time 14 to serve. (Doc. 15). Plaintiff’s primary argument for needing more time to serve four of 15 the Defendants is that some of them are evading service. Plaintiff further argues that 16 Plaintiff has been diligent in attempting to serve. 17 Plaintiff also states that “…at this time the 90-day service deadline since the filing 18 of the Amended Complaint on September 16, 2021, has not yet expired.” (Doc. 15 at 6). 19 This is not correct. As the Court previously held, service was due November 29, 2021. 20 (Doc. 14 at 1). The time provided by Federal Rule of Civil Procedure 4(m) to serve a 21 complaint is not restarted by the filing of an amended complaint, except as to any 22 defendants newly added in the amended complaint. Bolden v. City of Topeka, 441 F.3d 23 1129, 1148 (10th Cir. 2006) (citing 4B Charles Alan Wright & Arthur R. Miller, Federal 24 Practice and Procedure §1137, at 377 (3d ed. 2002)). Here, no defendants were newly 25 added in the amended complaint. 26 Plaintiff additionally argues that because the Court ordered Plaintiff to do 27 jurisdictional discovery and supplement the complaint with proof of jurisdiction by March 28 24, 2022, “there can be no prejudice to Defendants from extending the deadline for service 1 of process until that date.” (Doc. 15 at 6). There is no logic to this argument. First, the 2 fact that Plaintiff failed to have sufficient information to allege jurisdiction before filing 3 the complaint has no bearing on whether Defendants will be prejudiced by an extension of 4 time to serve. Second, by the Court requiring a jurisdictional supplement, the Court was 5 not making any guarantees that this case would not be dismissed for other reasons before 6 that deadline. Finally, Plaintiff seemingly has no intention of even attempting to complete 7 jurisdictional discovery as ordered by the Court by March 24, 2022 since Plaintiff seeks 8 until that date to either serve or move for alternative serve. The Court will not extend this 9 deadline. 10 Plaintiff concludes by arguing that good cause exists to extend the time to serve. 11 There are two avenues for relief under Rule 4(m) (see Lemoge v. United States, 587 12 F.3d 1188, 1198 (9th Cir. 2009)): 13 “The first is mandatory[.]” Id. (citation and footnote omitted). Based upon the plain language of that Rule, “the district court must extend time for service upon a 14 showing of good cause.” Id. (citation and footnote omitted). 15 “The second is discretionary [.]” Id. (citation omitted). Notwithstanding Rule 4(m), 16 “if good cause is not established, the district court may extend time for service upon a showing of excusable neglect.” Id. (citation omitted). 17 Engaging in the “two-step analysis” which the Ninth Circuit “requires[,]” the 18 court will first consider whether on this record there is good cause, thus mandating an extension of time for service under Rule 4(m). See In re 19 Sheehan, 253 F.3d at 512. Courts must determine whether good cause “has been shown on a case by case basis.” Id. (citation omitted). 20 21 Trueman v. Johnson, 2011 WL 6721327, *3 (D. Ariz. December 21, 2011) (reformatted). 22 A. Good Cause 23 To establish good cause, Plaintiffs must show: 24 1) excusable neglect; 25 2) the party to be served received actual notice of the suit; 26 3) the party to be served would suffer no prejudice; and 27 4) Plaintiffs would suffer severe prejudice if the complaint were dismissed. 28 Id. (citing Lemoge, 587 F.3d at 1198) (reformatted). 1 B. Excusable Neglect 2 In the absence of good cause, the court must proceed to the second step of the analysis, and decide whether, in its discretion, to extend the prescribed 3 time for service of the FAC. The Ninth Circuit has declined to “articulate a specific test that a court must apply in exercising its discretion under Rule 4 4(m)[,]” noting “that, under the terms of the rule, the court’s discretion is broad.” Gill v. Waikiki Lanai, Inc., 2011 WL 3648772, at *7 (D.Hawai'i 5 Aug.18, 2011) (quoting In re Sheehan, 253 F.3d at 513 (citation omitted)). 6 Trueman, 2011 WL 6721327 at *5. 7 However, the Court’s broad discretion is not limitless. Efaw v. Williams, 473 F.3d 8 1038, 1041 (9th Cir. 2007). “To determine whether a party’s failure to meet a deadline 9 constitutes ‘excusable neglect,’ courts must apply a four-factor equitable test based 10 upon Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380 (1993); and Briones 11 v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.1997).” Trueman, 2011 WL 12 6721327 at *5. 13 That four-factor equitable test requires, at a minimum, examination of: 14 (1) the danger of prejudice to the opposing party;1 15 (2) the length of the delay and its potential impact on judicial proceedings; 16 (3) the reason for the delay;2 and 17 (4) whether the movant acted in good faith. 18 Id. at 6 (quoting Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010)) 19 (footnotes added and reformatted). 20 Those four enumerated factors are “not an exclusive list[,]” however. Lemoge, 587 F.3d at 1195 (internal quotation marks and citation omitted). 21 “In some circumstances, the prejudice a denial would cause to the movant must also be considered, but it is not a fact that must be assessed in each and 22 every case.” S.E.C. v. Platforms Wireless Int'l Corp., 617 F.3d 1072, 1092 (9th Cir.2010) (internal quotation marks and citation omitted). 23 24 Id. at *6. In an effort to meet the good cause standard, Plaintiff submits evidence that 25 26 1 “Prejudice to defendants ‘requires greater harm than simply that relief would delay the resolution of the case.’” Trueman, 2011 WL 6721327, *4 (quoting Lemoge, 587 F.3d 27 at 1196). 28 2 Excusable neglect encompasses “negligence” and “carelessness.” Lemoge, 587 F.3d at 1192. 1 Defendant Sara Lihong Wei Lafrenz has notice of this lawsuit. (Doc. 15). Plaintiff also 2 submits evidence that Sara Lihong Wei Lafrenz and Jian Peng have been evading service. 3 (Id.). Plaintiff does not submit evidence that the other two unserved Defendants, Xiuzhu 4 Wei and Maywind Trading LLC, have notice of this lawsuit. 5 As discussed above, the Court has already rejected Plaintiff’s argument as to why 6 Defendants would not be prejudiced by an extension of time to serve. 7 Finally, Plaintiff argues it would be prejudiced by dismissal because it would have 8 to start the service of process efforts over anew. Plaintiff argues that such a result would 9 be inequitable when, as in this case, Plaintiff has evidence that Defendants are evading 10 service. The Court agrees with respect to the two Defendants - who Plaintiff has evidence 11 are evading service - that a dismissal, which would further delay any future alternative 12 service, would prejudice Plaintiff. 13 With respect to excusable neglect, the Court finds that Plaintiff’s attempts to serve 14 the four unserved Defendants have been diligent, and there is at least some evidence that 15 two of them are evading service. Additionally, Plaintiff has shown it would be prejudiced 16 by the dismissal of this entire case. Because at least some (and maybe all) Defendants are 17 aware of this lawsuit, the Court finds Defendants will not be prejudiced by an extension of 18 time. Thus, the Court will extend the time to serve Defendants: Sara Lihong Wei Lafrenz 19 a/k/a Sara Wei, Xiuzhu Wei, Maywind Trading LLC, and Jian Peng. However, to 20 minimize the length of the delay and the impact on the judicial proceedings, the Court will 21 not grant the length of extension Plaintiff seeks. 22 With respect to Defendant Qishen Chen, who Plaintiff now indicates is correctly 23 named Qisheng Chen, Plaintiff states that Plaintiff will move to amend the complaint to 24 correct this name. (Doc. 15 at 3, n.1). To date, no such motion has been filed. The Court 25 will take no action on this issue at this time. However, Plaintiff is cautioned that lack of 26 diligence in moving to amend, or serving after amendment, will be a basis to deny any 27 future motions to extend the service deadline as to this Defendant. The Court finds that 28 the prior service on this Defendant to a misspelled name constitutes excusable neglect 1 || which warrants an extension of the service deadline. 2 As indicated above, the deadline to serve the complaint in this case on the 3 || Defendants named herein expired November 29, 2021. The Court will extend the time to serve to January 28, 2022, which is an additional 60 days. If service is not accomplished 5 || for each Defendant by this date, as to any unserved Defendants, a motion for alternative 6 || service is also due by January 28, 2022; any motion for alternative service must include a 7\|| further motion for extension of time to serve. Plaintiff should not anticipate any extensions 8 || of these deadlines. Any motion for alternative service must comply with the controlling 9|| law. See, e.g., Ruffino v. Lokosky, 425 P.3d 1108, 1113 416 (Ariz. Ct. App. 2018) (“Given our present society, we agree with the superior court that modern methods of 11 || communication, especially email, were more likely to give [Defendant] notice of a suit than publication in a newspaper distributed in a rural area 70 miles from [Defendant’s] 13 || Scottsdale home.’). 14 Based on the foregoing, 15 IT IS ORDERED that the request for an extension of time to serve (part of Doc. || □□□ □□ granted. The deadline to serve Defendants: Sara Lihong Wei Lafrenz a/k/a Sara Wei, 17 || Xiuzhu Wei, Maywind Trading LLC, Qisheng Chen and Jian Peng is January 28, 2022. |} Any motion for alternative service and motion for additional time to serve is also due by January 28, 2022. If Plaintiff fails to comply with this Order, any unserved Defendants 20 || will be dismissed. 21 IT IS FURTHER ORDERED confirming the March 24, 2022 deadline for || Plaintiff to file the supplement to the complaint establishing jurisdiction. Plaintiff must 23 || use the time between now and then to complete any jurisdictional discovery Plaintiff 24 || requires to comply with this Court’s Orders. 25 Dated this 15th day of December, 2021. 26 a 3 27 28 _ James A. Teil Org Senior United States District Judge -7-