Foremost Fresh Direct, LLC v. Chandler Topic Company, Inc. ( 2023 )

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 Plaintiff, SECOND EX PARTE APPLICATION TO 13 EXTEND TIME FOR SERVICE OF v. SUMMONS AND COMPLAINT 14 CHANDLER TOPIC COMPANY, INC., a (Doc. 8) 15 Minnesota corporation, ORDER CONTINUING STATUS 16 Defendant. CONFERENCE 17 18 Currently before the Court is the second ex parte application of Plaintiff Foremost Fresh 19 Direct, LLC (“Plaintiff”) to extend the time for service of the summons and complaint on 20 Defendant Chandler Topic Company, Inc., a Minnesota corporation. (Doc. 8.) 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 The Court previously extended the deadline for service to December 23, 2022. (Doc. 6.) 4 Since that time, Plaintiff has not served Defendant Chandler Topic Company, Inc. According to 5 Plaintiff, counsel has researched possible addresses and determined that to serve Defendant 6 through the Minnesota Secretary of State, Plaintiff must attempt service on the address for 7 service on file with the Minnesota Secretary of State. The address on file is 10057 73rd Avenue 8 N., Maple Grove, MN 55369. (Doc. 8 at 3.) On January 23, 2023, Plaintiff requested that a 9 process server serve at this address. If Plaintiff is unable to serve Defendant at this address, then 10 Plaintiff will likely arrange for service through the Minnesota Secretary of State. (Id.) Plaintiff 11 seeks an additional sixty (60) days to effectuate service. 12 Having considered the ex parte application and supporting declaration, the Court finds 13 good cause to grant a second extension of Plaintiff’s time to serve Defendant. Accordingly, IT 14 IS HEREBY ORDERED: 15 1. Plaintiff’s Second Ex Parte Application to Extend Time for Service of Summons 16 and Complaint is GRANTED (Doc. 8), and the time for Plaintiff to serve Defendant with the 17 summons and complaint is extended to March 24, 2023; and 18 2. Based on the extension of time, the Status Conference currently set for 1/26/2023, 19 is HEREBY CONTINUED to April 27, 2023, at 9:00 a.m. in Courtroom 8 (BAM) before 20 Magistrate Judge Barbara A. McAuliffe. The parties shall appear at the conference remotely 21 with each party appearing either via Zoom video conference or Zoom telephone number. The 22 parties will be provided with the Zoom ID and password by the Courtroom Deputy prior to the 23 conference. The Zoom ID number and password are confidential and are not to be shared. 24 Appropriate court attire required. 25 IT IS SO ORDERED. 26 27 Dated: January 24, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 28