Gilbert v. Bookies, Inc. ( 2022 )

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 GRANTING MOTION FOR ADMINISTRATIVE RELIEF IN PART AND 13 v. EXTENDING DEADLINE TO COMPLETE SERVICE BY THIRTY DAYS 14 BOOKIES, INC., et al., (ECF No. 17) 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.) On November 16, 2022, Plaintiff filed what is entitled a request for 20 administrative relief from the service deadline. (ECF No. 17.) Plaintiff erroneously files the 21 motion pursuant to what appears to be “Local Rule 7-11” of the Northern District of California. 22 The Court construes the motion as a motion for administrative relief under Eastern District Local 23 Rule 233. 24 Local Rule 233 provides that “[m]iscellaneous administrative matters which require a 25 Court order may be brought to the Court’s attention through a motion for administrative relief.” 26 L.R. 233. “Examples of matters that such motions may address include motions to exceed 27 applicable page limitations; requests to shorten time on a motion; requests to extend a response deadline; requests to alter a briefing schedule; or requests to alter a discovery schedule that does 1 not affect dispositive motion filing dates, trial dates, or the final pre-trial conference.” Id. Such 2 motions: “(1) must be labeled as a motion for administrative relief; (2) may not exceed 5 pages 3 (excluding declarations and exhibits); (3) must set forth specifically the action requested, the 4 reasons supporting the request, and relevant background information (such as a description of 5 any similar relief that has previously been granted); (4) must be accompanied by a proposed 6 order; (5) must include a statement setting forth the position of all parties affected by the motion, 7 or a statement explaining why such position could not be ascertained; and (6) if manually filed, 8 must be delivered with all attachments on all parties on the same day the motion is filed.” L.R. 9 233(a)(1)-(6). An opposition is due within five (5) days after the motion was filed. L.R. 233(b). 10 Unless otherwise ordered, a Motion for Administrative Relief is submitted on the day after the 11 opposition is due for immediate action by the Court without hearing. L.R. 233(c). 12 Plaintiff labeled the filing a “request” for administrative relief pursuant to the incorrect 13 rule and thus technically did not comply with subsection (a)(1). Plaintiff did not discuss the 14 position of the other served Defendant in this action as required by subsection (a)(5). 15 Nonetheless, given no opposition was filed and the subject matter of the motion, in the interest of 16 efficiency, the Court proceeds to the merits. 17 Rule 4(m) provides that “If a defendant is not served within 90 days after the complaint is 18 filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action 19 without prejudice against that defendant or order that service be made within a specified time.” 20 Fed. R. Civ. P. 4(m). “But if the plaintiff shows good cause for the failure, the court must extend 21 the time for service for an appropriate period.” Id. The order setting the scheduling conference 22 in this matter additionally provides that: “plaintiff shall diligently pursue service of the summons 23 and complaint and dismiss those defendants against whom the plaintiff will not pursue claims . . 24 .[and] plaintiff shall promptly file proofs of service of the summons and complaint so the Court 25 has a record of service.” (ECF No. 3 at 1.) 26 Plaintiff proffers he has been diligent diligently attempting to serve Defendant with the 27 Summons and First Amended Complaint, but has not been able to effect service on Defendant. nen nn ee een nen nnn nn nn nn nn nn I IE IO OE 1 | to the process server, the business is no longer at this address. (Id. at 2.) Plaintiff plans to 2 | conduct further research and provide a new address to the process server. (Id.) Plaintiff requests 3 | a sixty (60) day extension of time to serve Defendant Northwood Associates, LLC. 4 The only date provided as to the above facts is located in the attached declaration, and 5 | only states that on August 31, 2022, Plaintiff's counsel directed a paralegal to serve Defendant 6 | Northwood Associates, LLC. (Decl. Tanya Moore (“Moore Decl.”) § 2, ECF No. 17-1 at 2.) 7 | Counsel then proffers: “One Legal attempted to serve ... but... the business is no longer 8 | located at the address provided for service.” (Id. at J 3.) No date is provided. 9 The Court does not find Plaintiff has not demonstrated diligence to justify a sixty (60) 10 | day extension, given no dates are provided as to the manner of pursuing service. However, given 11 | Plaintiff filed the motion before the deadline to complete service had expired, the Court finds 12 | sufficient good cause to grant a thirty (30) day extension from the current deadline. Fed. R. Civ. 13 | P. 4am). 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff's motion for administrative relief (ECF No. 17) is GRANTED in part; 16 and 17 2. The deadline for Plaintiff to complete service on Defendant Northwood 18 Associates, LLC, is extended to December 29, 2022.! 19 IT IS SO ORDERED. 20 Af 21 | Dated: _November 23, 2022 _ ef UNITED STATES MAGISTRATE JUDGE 22 23 24), It appears Plaintiff’s proposed order calculates the 90-day deadline as proceeding from the date of the institution 25 of this action. (See ECF No. 17 at 2.) The Court presumes the 90-day period for Rule 4(m) runs from the date of the filing of an amended complaint. See Torres v. Colvin, No. CV-13-2300-PHX-LOA, 2014 WL 2683296, at *1 26 (D. Ariz. June 13, 2014) (“The filing of an amended complaint does not restart the 120—day service period against a defendant named in the original complaint under Rule 4(m).”) (emphasis added); McGuckin v. United States, 918 F.2d 811, 813 (th Cir. 1990) (“[W]e must construe the 120—day limit of Rule 4G) to run from the filing of the 27 second amended complaint. To interpret the rule otherwise would restrict the time available for adding defendants to within 120 days after commencement.”). Rule 44m) was amended, effective December 1, 2015, to shorten the 28 | time for service from 120 to 90 days.