(PS)Jones v. BergElectric Inc. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN KEITH JONES, No. 2:21–cv–0614–KJM–CKD PS 12 Plaintiff, 13 v. ORDER GRANTING EXTENSION OF TIME FOR PLAINTIFF TO COMPLETE SERVICE 14 BERGELECTRIC, INC., et al., BY FILING DEFENDANT ABC’S SIGNED 15 Defendant. WAIVER 16 17 18 Defendant ABC’s motion to dismiss, filed August 27, 2021, is pending. Plaintiff has filed 19 an opposition, to which defendant ABC has replied. Having read and considered the papers filed 20 in support of and in opposition to the motion, the court orders as follows.1 21 I. Background 22 Plaintiff Melvin Keith Jones filed this case on November 30, 2020 in the United States 23 District Court for the Northern District of California. He proceeds pro se, alleging claims under 24 Title VII of the Civil Rights Act of 1964. Plaintiff proceeds against two defendants: Bergelectric, 25 Inc., and Associated Builders and Contractors, Inc., Northern California Chapter Unilateral 26 27 1 Defendant ABC’s motion to dismiss shall remain pending. Until resolution of the motion, or until the court orders otherwise, defendant ABC has no obligation to file further responses to 28 documents filed by plaintiff. 1 Apprenticeship Committee (hereinafter “ABC”). Defendant Bergelectric answered the complaint 2 on December 14, 2020. 3 The district court in the Northern District of California transferred this case to this court 4 on April 2, 2021. By order dated April 5, 2021, a status conference was set to take place on 5 September 8, 2021; the status conference has since been reset to take place on November 3, 2021. 6 (See ECF No. 41.) In the April 5, 2021 order, plaintiff was directed to complete service of process 7 on the defendants named in the complaint within 90 days. Plaintiff was cautioned that a failure to 8 complete service of process within 90 days from the date on which the complaint was filed could 9 result in dismissal under Rule 4(m) of the Federal Rules of Civil Procedure. (ECF No. 30.)2 10 On August 27, 2021, defendant ABC moved to dismiss plaintiff’s claims against 11 defendant ABC pursuant to Rules 4(m) and 12(b) of the Federal Rules of Civil Procedure. 12 Defendant ABC argues plaintiff failed to meet statutory and court-imposed deadlines for serving 13 defendant ABC. In the alternative, defendant ABC argues the complaint fails to state a claim 14 upon which relief can be granted. (ECF No. 43.) 15 Defendant ABC’s motion to dismiss was set for a hearing to take place on October 6, 16 2021. Plaintiff did not file a timely opposition. On September 28, 2021, the court ordered plaintiff 17 to show cause, in writing and within 14 days, why plaintiff’s failure to oppose the motion to 18 dismiss should not waive the right to oppose the motion and why plaintiff’s claims against 19 defendant ABC should not be dismissed. (ECF No. 44.) 20 Plaintiff has filed an opposition to the motion to dismiss. (ECF No. 47.) Plaintiff argues 21 that the court should hear his claims against defendant ABC but does not address the arguments 22 raised in the motion to dismiss, including the argument that he has not properly served defendant 23 ABC. 24 II. Discussion 25 A federal court does not have jurisdiction over a defendant unless the defendant has been 26 served properly under Federal Rule of Civil Procedure 4. See Omni Capital Int’l Ltd. v. Rudolf 27 2 Plaintiff has indicated he did not receive the court’s April 5, 2021 order until August 18, 2021. 28 (ECF No. 33.) 1 Wolff & Co., 484 U.S. 97, 104 (1987). Service of process must be completed “within 90 days 2 after the complaint is filed.” See Fed. R. Civ. P. 4(m). Rule 4(h) specifies the manner of service 3 required upon “a domestic or foreign corporation, or a partnership or other unincorporated 4 association that is subject to suit under a common name[.]” Fed. R. Civ. P. 4(h). The manner of 5 service specified in Rule 4(h) applies “unless the defendant’s waiver has been filed[.]” Id. 6 (emphasis added). 7 Here, plaintiff elected to pursue a waiver of service from defendant ABC and the court’s 8 analysis is therefore guided by Rule 4(d) of the Federal Rules of Civil Procedure. If a defendant 9 agrees to waive service by returning the waiver to the plaintiff, then the date of service is deemed 10 to be the date on which the plaintiff files the signed waiver form with the court. Fed. R. Civ. P. 11 4(d)(4) (emphasis added). If the defendant agrees to waive service, then once the plaintiff files the 12 defendant’s signed waiver, the action proceeds “as if the summons and complaint had been served 13 at the time of filing the waiver.” Fed. R. Civ. P. 4(d)(4). “The only issues that are eliminated by 14 the waiver are those involving sufficiency of the summons or sufficiency of the method by which 15 the summons is served”; the waiver does not preclude a challenge under Rule 4(m). See Patel v. 16 Dameron Hosp., No. Civ-S-99-1275-DFL-PAN, 2000 WL 35619441, at *2 (E.D. Cal. June 23, 17 2000) (citing Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial (TRG 18 1999), § 5:157, p. 5-31); see also Fed. R. Civ. P. 4(d), (m). 19 Pertinent here, according to the declaration and argument submitted in support of 20 defendant ABC’s motion to dismiss, defendant ABC has signed a waiver of service and returned 21 it to plaintiff on January 20, 2021. (ECF No. 43-3 at ¶ 3.) Plaintiff has not, however, filed the 22 signed waiver with the court. Thus, defendant ABC maintains it has not been properly served. 23 Indeed, as set forth, Rule 4(d) requires a plaintiff to file a defendant’s signed waiver with the 24 court in order for the action to proceed “as if the summons and complaint had been served at the 25 time of filing the waiver.” Fed. R. Civ. P. 4(d)(4). 26 It appears that plaintiff has misunderstood the procedure for waiving service under Rule 27 4(d); simply obtaining the signed waiver from defendant does not constitute service on a 28 defendant. Rather, plaintiff must file the executed [signed] waiver within Rule 4(m)’s 90-day 1 window. See Fed. R. Civ. P. 4(d), (m); Pine v. City of Oakland, No. 19-CV-02136-AGT, 2020 2 WL 2512404, at *4-5 (N.D. Cal. May 16, 2020). 3 Here, plaintiff filed the unsigned waivers he sent to both defendants at the time he mailed 4 the waivers. (ECF No. 11.) However, plaintiff has not filed a signed waiver for either defendant.3 5 When a defendant challenges service, the plaintiff bears the burden of establishing the 6 validity of service as governed by Rule 4 of the Federal Rules of Civil Procedure. See 7 Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). Where, as here, service was not 8 completed in accordance with Rule 4(m), the district court applies a two-step analysis to 9 determine whether to extend the time for such service. See In re Sheehan, 253 F.3d 507, 512 (9th 10 Cir. 2001). If good cause is shown, the court must grant an extension; if good cause is not shown, 11 the court still has the discretion to grant an extension. See Efaw v. Williams, 473 F.3d 1038, 1040 12 (9th Cir. 2007). In deciding whether to grant such an extension, a district court “may consider 13 factors like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and 14 eventual service.” See Id. at 1041 (internal quotation and citation omitted). 15 Defendant argues that an extension is not warranted because plaintiff has been on direct 16 and explicit notice of his failure to properly effectuate service against defendant ABC since 17 defendant ABC filed its Case Management Conference Statement on March 2, 2021. However, 18 the court finds the applicable factors weigh in favor of granting plaintiff an extension. 19 Significantly, defendant ABC has not shown it will be prejudiced by the delay and defendant has 20 had actual notice of the action since at least January 20, 2021. In addition, plaintiff is representing 21 himself, and pro se litigants are given some consideration in federal litigation in that their 22 pleadings are liberally construed.4 23 3 As set forth, though, defendant Bergelectric answered the complaint and did not challenge 24 service of process. Thus, only the executed waiver of defendant ABC is at issue. 25 4 Nonetheless, pro se litigants are expected to know and comply with the rules of civil procedure and are not exempt from complying with the basic rules for service of process. American Ass’n of 26 Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108 (9th Cir. 2000). A plaintiff’s pro se 27 status does not excuse untimely service. Id. at 1108; see McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that procedural rules in ordinary civil litigation should 28 be interpreted so as to excuse mistakes by those who proceed without counsel.”). ] Despite any consideration of his pro se status, though, plaintiff has not met his burden to 2 || show that he properly served defendant ABC because he has not filed the waiver of service 3 || executed by defendant ABC. See Livingston v. Morgan, No. C-06-2389 MMC, 2007 WL 4 | 1150922, at *3 (N.D. Cal. Apr. 18, 2007) (“[Plaintiff], however, has not filed a waiver returned 5 || by [defendant] as required by Rule 4(d), and accordingly, [plaintiff] fails to demonstrate service 6 | under Rule (4)(d).”).° In order to demonstrate proper service, plaintiff must either serve defendant 7 || ABC and file proof of such service, or file the waiver of service already executed by defendant 8 | ABC which defendant ABC returned to plaintiff on January 20, 2021. 9 Accordingly, for the reasons set forth herein, IT IS HEREBY ORDERED: 10 1. The deadline for plaintiff to serve defendant ABC, and to file proof of such service, is 11 || extended to November 12, 2021; 12 2. Plaintiff shall file the waiver of service already executed by defendant ABC on or 13 || before November 12, 2021; and 14 3. Plaintiff is cautioned that failure to file the waiver of service executed by defendant 15 || ABC on or before November 12, 2021 may result in dismissal of plaintiffs claims against 16 || defendant ABC. | Dated: October 12, 2021 lt) ge fie > i BAD /L. id . Le CA Be Poe 18 eee CAROLYN K. DELANEY 19 UNITED STATES MAGISTRATE JUDGE 20 8.jone0614.serviceABC 21 22 | ; . . i . . . . However, there is also the question whether plaintiff has substantially complied with service 23 || requirements, an issue neither party has addressed. See, e.g., Azzawi v. Brown, No. 2:15-cv- 1468-GEB-AC, 2015 WL 6460363, at *3 (E.D. Cal. Oct. 26, 2015) (noting that the doctrine of 24 || substantial compliance “exists to save instances of ineffective service based on technical defects to avoid dismissals that would prejudice the plaintiff’ (emphasis in original)); Procopio v. Conrad 25 Prebys Tr., No. 14ev1651 AJB (KSC), 2015 WL 4662407 (S.D. Cal. Aug. 6, 2015) (noting that 26 || substantial compliance is to address “minor defects in service and prevent dismissal,” not to prevent the quashing of improper service). Because the court is granting plaintiff an extension of 27 || time to complete service by filing defendant ABC’s signed waiver, the court does not now decide whether plaintiff could be said to have substantially complied with Rule 4 as to service of 28 | defendant ABC.