Mayen v. W.M. Bolthouse Farms, Inc. ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JULIO MAYEN, an individual, on his own Case No. 1:21-cv-00318-DAD-BAK behalf and on behalf of others similarly situated, 11 ORDER FOR PLAINTIFF TO SHOW Plaintiff, CAUSE WHY THE CASE AGAINST 12 BOLT HOUSE FARMS, BOLTHOUSE v. FARMS CUYAMA CUYAMA, AND 13 BOLTHOUSE FARMS KERN COUNTY SHOULD NOT BE DISMISSED FOR 14 W.M. BOLTHOUSE FARMS, INC., et al., FAILURE TO COMPLETE SERVICE PURSUANT TO FEDERAL RULE OF 15 Defendants. CIVIL PROCEDURE 4(m) 16 Plaintiff Julio Mayen proceeds through counsel in this civil action against Defendants 17 W.M. Bolthouse Farms, Inc.; MA Medina Farm Labor Services, Inc.; Bolt House Farms; 18 Bolthouse Farms Cuyama Cuyama; Bolthouse Farms Kern County; and various Doe Defendants. 19 (ECF No. 1). For the reasons given below, the Court orders Plaintiff to show cause why the case 20 against Defendants Bolt House Farms, Bolthouse Farms Cuyama Cuyama, and Bolthouse Farms 21 Kern County1 should not be dismissed without prejudice for failure to complete service pursuant 22 to Federal Rule of Civil Procedure 4(m). 23 Under Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served within 90 days 24 after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must 25 dismiss the action without prejudice against that defendant or order that service be made within a 26 27 1 The Court will not require Plaintiffs to address the identity of the remaining Doe Defendants and service on them at this time but may do so in a later order, or Plaintiffs may voluntarily address the issue in their 28 response to the order to show cause. 1 specified time.” Fed. R. Civ. P. 4(m). However, “if the plaintiff shows good cause for the failure, 2 the court must extend the time for service for an appropriate period.” Id. 3 According to the notice of removal filed on March 1, 2021, and supported by the attached 4 documents, Plaintiff initiated this action in state court with the filing of the complaint on October 28, 2020, against Defendant MA Medina Farm Labor Services and Does 1 through 100. (ECF 5 No. 1, pp. 2, 12). Plaintiff amended the complaint on January 25, 2021, to add Defendants W.M. 6 Bolthouse Farms, Inc.; Bolt House Farms; Bolthouse Farms Cuyama Cuyama; and Bolthouse 7 Farms Kern County in place of Does 1 through 4. (Id. at 2, 8-11). The notice of removal 8 represents that service was achieved on Defendants W.M. Bolthouse Farms, Inc. and MA Medina 9 Farm Labor Services in state court.2 (Id. at 2-3). However, the available state court record does 10 not indicate that Defendants Bolt House Farms, Bolthouse Farms Cuyama Cuyama, and 11 Bolthouse Farms Kern County were served in state court, and the Court’s docket reveals no proof 12 that these Defendants were served after removal. See Whidbee v. Pierce Cnty., 857 F.3d 1019, 13 1023 (9th Cir. 2017) (noting that Rule 4(m) governs service once a case is removed to federal 14 court); Nealey v. Transportacion Maritima Mexicana, S. A., 662 F.2d 1275, 1282 (9th Cir. 1980) 15 (“If process was properly issued and timely served under state law prior to removal, such service 16 remains sufficient afterwards.”). Accordingly, the ninety-day time period for service under Rule 17 4(m) appears to have expired without service being achieved. 18 Accordingly, IT IS ORDERED as follows: 19 1. Plaintiff shall show cause why the case against Defendants Bolt House Farms, Bolthouse 20 Farms Cuyama Cuyama, and Bolthouse Farms Kern County should not be dismissed 21 without prejudice for failure to complete service pursuant to Federal Rule of Civil 22 Procedure 4(m); 23 2. Plaintiff shall file, no later than August 16, 2022, proof of service as to these Defendants or a response to this order to show cause demonstrating that Plaintiff has good cause for 24 failing to complete service on these Defendants and explaining when Plaintiff will 25 complete service; and 26 27 28 2 Defendant W.M. Bolthouse Farms, Inc. has a pending motion to dismiss. (ECF No. 8). 1 3. Plaintiff is cautioned that failure to respond to this order to show cause may result in the 2 dismissal of these Defendants from the action. 3 4 IT IS SO ORDERED. S| Dated: _ August 2, 2022 [see hey 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28