Foremost Fresh Direct, LLC v. Chandler Topic Company, Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FOREMOST FRESH DIRECT, LLC, a Case No. 1:22-cv-00926-JLT-BAM Texas limited liability company, 12 ORDER GRANTING PLAINTIFF’S EX Plaintiff, PARTE APPLICATION TO EXTEND 13 TIME FOR SERVICE OF SUMMONS AND v. COMPLAINT 14 CHANDLER TOPIC COMPANY, INC., a (Doc. 5) 15 Minnesota corporation, ORDER CONTINUING STATUS 16 Defendant. CONFERENCE 17 18 Currently before the Court is the ex parte application of Plaintiff Foremost Fresh Direct, 19 LLC (“Plaintiff”) to extend the time for service of the summons and complaint on Defendant 20 Chandler Topic Company, Inc., a Minnesota corporation. (Doc. 5.) 21 Rule 4 of the Federal Rules of Civil Procedure governs the time limit for service of the 22 summons and complaint and provides, in relevant part, as follows: 23 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—must dismiss the action 24 without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must 25 extend the time for service for an appropriate period. 26 Fed. R. Civ. P. 4(m). Thus, a showing of good cause requires the Court to grant an extension of 27 time for service. Id. However, absent a showing of good cause, the Court also has discretion 28 under Rule 4(m) to either order that service be made within a specified time or to dismiss the 1 action without prejudice. See id.; In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001) (“[U]nder the 2 terms of the rule, the court’s discretion is broad.”). 3 Here, Plaintiff states that the current deadline to serve Defendant is October 24, 2022. 4 Plaintiff seeks an additional ninety (90) days to effectuate service. Plaintiff reports that it has 5 attempted service upon Defendant a total of six times. Plaintiff also attempted to provide 6 Defendant with a draft of the complaint and a demand letter prior to initiating this action, but was 7 unable to reach Defendant at two alternative addresses. (Doc. 5 at 3.) Plaintiff now intends to 8 attempt service at different addresses for which there are records of Defendant or Defendant’s 9 agents or principals. Alternatively, if Plaintiff is still unable to serve Defendant, then Plaintiff 10 may move this Court for an order authorizing alternative means of service. (Id.) 11 Having considered the ex parte application and supporting declaration, the Court finds 12 good cause to extend Plaintiff’s time to serve Defendant. Accordingly, IT IS HEREBY 13 ORDERED: 14 1. Plaintiff’s Ex Parte Application to Extend Time for Service of Summons and 15 Complaint is GRANTED (Doc. 5), and the time for Plaintiff to serve Defendant with 16 the summons and complaint is extended to December 23, 2022; and 17 2. Based on the extension of time, the Status Conference currently set for 10/26/2022, is 18 HEREBY CONTINUED to January 26, 2023, at 9:30 a.m. in Courtroom 8 (BAM) 19 before Magistrate Judge Barbara A. McAuliffe. The parties shall appear at the 20 conference remotely with each party appearing either via Zoom video conference or 21 Zoom telephone number. The parties will be provided with the Zoom ID and 22 password by the Courtroom Deputy prior to the conference. The Zoom ID number 23 and password are confidential and are not to be shared. Appropriate court attire 24 required. 25 IT IS SO ORDERED. 26 27 Dated: October 24, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 28