Fisher v. Army National Guard ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHANNA FISHER, et al., No. 1:20-cv-01471-NONE-EPG 12 Plaintiffs, 13 v. ORDER TO EFFECTUATE SERVICE 14 ARMY NATIONAL GUARD, et al., 15 Defendants. 16 17 Plaintiffs Johanna Fisher and J.G., a minor, by and through her guardian ad litem, Johanna 18 Fisher (“Plaintiffs”) filed the complaint commencing this action on October 15, 2020. (ECF No. 19 1). The complaint listed three known defendants—Army National Guard, California Army 20 National Guard, and California Military Department—and Does 1-10. The clerk of court issued 21 summons on October 16, 2020. (ECF Nos. 5-6). 22 Plaintiffs and Defendant California Military Department (“CMD”) filed four stipulations 23 to extend time in this action. (ECF Nos. 12, 13, 15, 17). The first, signed by both parties, 24 indicated that “CMD was served on October 23, 2020[.]” (ECF No. 12 at 2). Their two most- 25 recent stipulations indicated that Plaintiffs also filed a lawsuit in state court against Porterville 26 Military Academy and Porterville Unified School District concerning the same incident. (ECF 27 Nos. 15, 17). Plaintiffs sought extensions of time to bring the state-court defendants into this 28 action. (ECF Nos. 15, 17). 1 On January 29, 2021, Plaintiffs filed a first amended complaint. (ECF No. 19). The first 2 amended complaint adds Porterville Unified School District and, perhaps,1 ten more Doe 3 Defendants as defendants to this lawsuit. 4 Although CMD has appeared and has admitted it was served, there are no indications that 5 any other defendant has been served in this action. 6 Federal Rule of Civil Procedure 4(l)-(m) govern proving service and the time limit for 7 effecting service: 8 (l) Proving Service. 9 (1) Affidavit Required. Unless service is waived, proof of service must be 10 made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server's affidavit. 11 … (3) Validity of Service; Amending Proof. Failure to prove service does not 12 affect the validity of service. The court may permit proof of service to be 13 amended. 14 (m) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff-- 15 must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for 16 the failure, the court must extend the time for service for an appropriate period. This 17 subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A). 18 19 Fed. R. Civ. P. 4. 20 “The [90]–day time period prescribed by Rule 4(m) expires [90] days after the first 21 complaint naming the defendant is filed.” Ahmed v. Countrywide Home Loans, Inc., No. 2:12- 22 CV-01331-MCE, 2013 WL 486137, at *2 (E.D. Cal. Feb. 1, 2013) (quoting Rudolph v. UT 23 Starcom, Inc., 2009 WL 248370, at *2 (N.D.Cal. Feb.2, 2009) and citing Bolden v. City of 24 Topeka, 441 F.3d 1129, 1148 (10th Cir. 2006)); accord 4B Adam N. Steinman, Fed. Prac. & 25 Proc. Civ. § 1137 (4th ed.) (“Filing an amended complaint does not toll the Rule 4(m) service 26 period and thereby provide an additional 90 days for service. However, adding a new party 27 1 The caption of the first amended complaint lists “Does 1 to 20,” (id. at 1), but page three states that there are ten 28 Doe defendants, (id. at 3). en en nnn ee en nnn en OI EI EIEIO ES EOD 1 | through an amended complaint initiates a new timetable for service upon the added defendant.”’). 2 Here, all named parties other than Porterville Unified School District were named in the 3 || initial complaint on October 15, 2020. Plaintiffs thus had to serve all other parties within ninety 4 || days—thus, no later than January 13, 2021. The time to serve has therefore elapsed and no proof 5 || of service or signed waiver has been filed with respect to Defendants Army National Guard and 6 || California Army National Guard. 7 The Court will therefore order Plaintiffs to file proofs of service or waivers of service with 8 || respect to those two defendants. 9 Accordingly, IT IS HEREBY ORDERED that Plaintiffs shall, within thirty days, with 10 || respect to Defendants Army National Guard and California Army National Guard, file (1) proofs 11 | of service; (2) waivers of service; or (3) a motion for an extension of time, as set forth above.” 12 | IT IS SO ORDERED. 13 | Dated: _February 1, 2021 [sf ee ey — UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 2 Should Plaintiff's need an additional extension of time, they may file a motion to request one. Such a motion must 27 | include an explanation for why an additional extension is required and a proposed final date for when service will be 38 accomplished.