Gilbert v. Bookies, Inc. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARREN GILBERT, Case No. 1:22-cv-01008-ADA-SAB 12 Plaintiff, ORDER DENYING MOTION FOR 42-DAY EXTENSION AND GRANTING 7-DAY 13 v. EXTENSION TO COMPLETE SERVICE 14 BOOKIES, INC., et al., (ECF No. 22) 15 Defendants. 16 17 Plaintiff filed this action on August 11, 2022. (ECF No. 1.) On August 31, 2022, 18 Plaintiff filed a first amended complaint, naming Northwood Associates as an additional 19 Defendant. (ECF No. 5.) The Court previously granted extensions of time to complete service 20 on this Defendant on November 23, 2022, and December 29, 2022. (ECF Nos. 18, 20.) On 21 February 7, 2023, Plaintiff filed a third request for administrative relief from the service 22 deadline. (ECF No. 22.) For the third time, Plaintiff erroneously files the motion pursuant to 23 what appears to be “Local Rule 7-11” of the Northern District of California, despite the Court 24 advising Plaintiff of such error when granting the first motion. The Court again construes the 25 motion as a motion for administrative relief under Eastern District Local Rule 233. 26 Local Rule 233 provides that “[m]iscellaneous administrative matters which require a 27 Court order may be brought to the Court’s attention through a motion for administrative relief.” L.R. 233. “Examples of matters that such motions may address include motions to exceed 1 applicable page limitations; requests to shorten time on a motion; requests to extend a response 2 deadline; requests to alter a briefing schedule; or requests to alter a discovery schedule that does 3 not affect dispositive motion filing dates, trial dates, or the final pre-trial conference.” Id. Such 4 motions: “(1) must be labeled as a motion for administrative relief; (2) may not exceed 5 pages 5 (excluding declarations and exhibits); (3) must set forth specifically the action requested, the 6 reasons supporting the request, and relevant background information (such as a description of 7 any similar relief that has previously been granted); (4) must be accompanied by a proposed 8 order; (5) must include a statement setting forth the position of all parties affected by the motion, 9 or a statement explaining why such position could not be ascertained; and (6) if manually filed, 10 must be delivered with all attachments on all parties on the same day the motion is filed.” L.R. 11 233(a)(1)-(6). An opposition is due within five (5) days after the motion was filed. L.R. 233(b). 12 Unless otherwise ordered, a Motion for Administrative Relief is submitted on the day after the 13 opposition is due for immediate action by the Court without hearing. L.R. 233(c). 14 As with the previous two motions, Plaintiff labeled the filing a “request” for 15 administrative relief pursuant to the incorrect rule and thus technically did not comply with 16 subsection (a)(1). Plaintiff did not discuss the position of the other served Defendant in this 17 action as required by subsection (a)(5). Nonetheless, given no opposition was filed and the 18 subject matter of the motion, in the interest of efficiency, the Court proceeds to the merits. 19 Rule 4(m) provides that “If a defendant is not served within 90 days after the complaint is 20 filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action 21 without prejudice against that defendant or order that service be made within a specified time.” 22 Fed. R. Civ. P. 4(m). “But if the plaintiff shows good cause for the failure, the court must extend 23 the time for service for an appropriate period.” Id. The order setting the scheduling conference 24 in this matter additionally provides that: “plaintiff shall diligently pursue service of the summons 25 and complaint and dismiss those defendants against whom the plaintiff will not pursue claims . . 26 .[and] plaintiff shall promptly file proofs of service of the summons and complaint so the Court 27 has a record of service.” (ECF No. 3 at 1.) 1 able to effect service; that Plaintiff attempted service at 3606 6th Street, Ceres, CA 95307, but 2 according to the process server, the business is no longer located at the address provided for 3 service; that Plaintiff requested that the process server attempt service at 3606 6th Street, Ceres, 4 CA 95307, but this time to ask for Panella Dryage Co.; that the process server was told on each 5 three service attempts from December 4, 2022 to December 7, 2022, that the location is closed 6 and open by appointment only; that Plaintiff’s process server continued to attempt service on 7 Defendant at 3606 6th Street, Ceres, CA 95307, and spoke to agent for Defendant through an 8 intercom, who refused to come outside to be served with the summons and complaint, evading 9 service; that Plaintiff plans to file a motion to serve Defendant through the California Secretary 10 of State; and that Plaintiff requires a further 42-day extension to complete service (or take 11 appropriate action) with regards to serve Defendant. 12 In the body of the motion, the last specific date that Plaintiffs proffer demonstrate 13 diligence are December 4, and December 7, 2022, and Plaintiff provides only generalized 14 statements that the above attempts at the same address were made, but no dates are provided, nor 15 any other statements demonstrating diligence to complete service. The only date provided in the 16 attached declaration is December 3, 2022. (ECF No. 22-1 at 2.) 17 The Court cannot find diligence based on such generalized proffer with no dates provided 18 aside from dates approximately three weeks before the December 29, 2022, motion was filed. 19 Indeed, in granting the first extension of time on November 23, 2022, the Court found the lack of 20 dates and information precluded finding diligence to justify a 60-day extension of time: 21 The only date provided as to the above facts is located in the attached declaration, and only states that on August 31, 2022, 22 Plaintiff’s counsel directed a paralegal to serve Defendant Northwood Associates, LLC. (Decl. Tanya Moore (“Moore 23 Decl.”) ¶ 2, ECF No. 17-1 at 2.) Counsel then proffers: “One Legal attempted to serve . . . but . . . the business is no longer 24 located at the address provided for service.” (Id. at ¶ 3.) No date is provided. 25 The Court does not find Plaintiff has not demonstrated 26 diligence to justify a sixty (60) day extension, given no dates are provided as to the manner of pursuing service. However, given 27 Plaintiff filed the motion before the deadline to complete service had expired, the Court finds sufficient good cause to grant a thirty 1 | No. 18 at 2.) 2 The Court shall grant Plaintiff an additional seven (7) days from the date of entry of this 3 | order to serve Defendant. If Defendant is not served or Plaintiff is not able to clearly 4 | demonstrate good cause to justify a further extension, the Court is inclined to recommend 5 | dismissal of Defendant without prejudice. Fed. R. Civ. P. 4(m). The Court would be disinclined 6 | to find facts supporting service on the California Secretary of State. See Freshko Produce Servs., 7 | Inc. v. ILA Prod., Inc., No. 119CV00017DADBAM, 2020 WL 2039049, at *2 (E.D. Cal. Apr. 8 | 28, 2020) (“Plaintiff has failed to establish that process cannot be served with reasonable 9 | diligence.”). 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Plaintiff's motion for administrative relief (ECF No. 22) is DENIED in part and 12 GRANTED in part; and 13 2. The deadline for Plaintiff to complete service on Defendant Northwood 14 Associates, LLC, is extended for a period of seven (7) days from the date of entry 15 of this order. 16 17 IT IS SO ORDERED. DAM Le 1g | Dated: February 14, 2023 _ Oe 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28