Nagy v. United Schutzhund Clubs of America ( 2020 )

1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 ZOLTAN NAGY, Case No. 19-cv-08459-MMC 8 Plaintiff, ORDER DENYING DEFENDANTS' 9 v. MOTION TO DISMISS PLAINTIFF'S COMPLAINT FOR INSUFFICIENT 10 UNITED SCHUTZHUND CLUBS OF SERVICE OF PROCESS AMERICA, et al., 11 Re: Doc. No. 19 Defendants. 12 13 Before the Court is defendants United Schutzhund Clubs of America (“USCA”) and 14 Jim Alloway’s (“Alloway”) “Motion to Dismiss Plaintiff’s Complaint for Insufficient Service 15 of Process,” filed June 16, 2020. Plaintiff Zoltan Nagy (“Nagy”) has filed opposition, to 16 which defendants have replied. Having read and considered the papers filed in support 17 of and in opposition to the motion, the Court rules as follows.1 18 BACKGROUND 19 In his complaint, filed December 30, 2019, Nagy alleges USCA “hosts, sponsors, 20 and operates German Shepherd working dog shows, competitions, and trials” and that 21 Alloway is “an officer, director, supervisor, or managing agent” thereof. (See Compl. ¶¶ 22 3-4.) Nagy further alleges he is an “immigrant” from Hungary who was hired by USCA as 23 a “Performance Judge,” which position entailed his “judging the participants” in the 24 above-referenced competitions. (See id. at ¶¶ 2, 10.) 25 Nagy further alleges that, on May 2, 2019, during the “2019 Working Dog 26 Championship,” Alloway told him “he would never work as a judge ‘in this country’ again” 27 1 (see id. at ¶¶ 23-24), and that, in response thereto, Nagy “made an internal complaint of 2 bias and discrimination” against Alloway, which complaint was “relayed to” Alloway (see 3 id. at ¶ 27). According to Nagy, Alloway prepared a report in which he requested 4 “unspecified discipline” be imposed or “adverse actions” be taken against him (see id. at 5 ¶ 30), and that, based on Alloway’s report, the Executive Board of USCA issued a one- 6 year suspension against him, finding he had “acted improperly” in accusing Alloway of 7 being “anti-immigrant” and “racist” (see id. at ¶ 37). 8 Additionally, according to Nagy, USCA, for the three-year period preceding the 9 filing of his complaint, did not pay him required overtime compensation or minimum 10 wages, or provide him with itemized wage statements. (See id. at ¶¶ 20-21.) 11 Based on the above allegations, Nagy asserts the following fourteen causes of 12 action: (1) Count I, titled “Violations of Title VII of the Civil Rights Act – Discrimination”; 13 (2) Count II, titled “Violations of Title VII of the Civil Rights Act – Retaliation”; (3) Count III, 14 titled “Violations of Title VII of the Civil Rights Act – Harassment”; (4) Count IV, titled 15 “Violations of the California Fair Employment & Housing Act – Discrimination”; (5) Count 16 V, titled “Violations of the California Fair Employment & Housing Act – Retaliation”; (6) 17 Count VI, titled “Violations of the California Fair Employment & Housing Act – 18 Harassment”; (7) Count VII, titled “Violations of the California Labor Code – Failure to 19 Provide Itemized Wage Statements”; (8) Count VIII, titled “Intentional Interference with 20 Prospective Economic Advantage”; (9) Count IX, titled “Violations of the FLSA, 29 U.S.C. 21 Section 207 et seq[.] – Failure to Pay all Wages Due and Overtime”; (10) Count X, titled 22 “Declaratory Relief”; (11) Count XI, titled “Violations of the California Unruh Civil Rights 23 Act”; (12) Count XII, titled “Violations of the California Labor Code – Failure to Pay all 24 Wages Due and Overtime”; (13) Count XIII, titled “Wrongful Termination in Violation of 25 Public Policy”; and (14) Count XIV, titled “Defamation.”2 26 27 2 The Third, Eighth, Eleventh, and Fourteenth causes of action are brought against 1 After the complaint was filed, Nagy’s attorney, on February 4, 2020, requested the 2 law firm then representing USCA accept service of process on behalf of both USCA and 3 Alloway, which request, on February 5, 2020, was denied. (See Doc. No. 24-1 (Poore 4 Decl., filed July 7, 2020,) Ex. A.) Thereafter, Nagy’s process server, on April 15, 2020, 5 unsuccessfully attempted service on USCA, noting the business was “apparently closed 6 due to coronavirus.” (See Doc. No. 25-1 (Pauley Decl., filed July 7, 2020,) Ex. A.) USCA 7 was successfully served on May 26, 2020. (See Doc. No. 14 (Proof of Service, filed May 8 29, 2020).) To date, Alloway has not been served. 9 DISCUSSION 10 By the instant motion, USCA and Alloway3 seek dismissal of the complaint 11 pursuant to Rules 12(b)(5) and 4(m) of the Federal Rules of Civil Procedure. 12 Pursuant to Rule 12(b)(5), a party may file a motion to dismiss based on 13 “insufficient service of process.” See Fed. R. Civ. P. 12(b)(5). Pursuant to Rule 4(m), 14 service of process must be completed “within 90 days after the complaint is filed.” See 15 Fed. R. Civ. P. 4(m). In the instant action, the complaint was filed December 30, 2019, 16 and both parties agree the deadline to complete service was March 29, 2020. As noted, 17 USCA was served on May 26, 2020, and Alloway, to date, has not been served. Where, 18 as here, service was not completed in accordance with Rule 4(m), the district court, as 19 set forth below, applies a two-step analysis to determine whether to extend the time for 20 such service. See In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). 21 First, as set forth in Rule 4(m), a district court “must extend the time for service” if 22 the plaintiff shows “good cause” for a failure to serve within the requisite 90 days. See 23 Fed. R. Civ. P. 4(m); see also Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007) 24 (holding “Rule 4(m) . . . requires a district court to grant an extension of time when the 25 plaintiff shows good cause for the delay” (emphasis in original)). “At a minimum, ‘good 26 27 3 As Alloway has not been served, he appears here only for the limited purpose of 1 cause’ means excusable neglect.” See Boudette v. Barnett, 923 F.2d 754, 756 (9th Cir. 2 1991). 3 Nagy, in opposition to the instant motion, argues good cause exists for his failure 4 to serve USCA and Alloway in accordance with Rule 4(m), specifically, “the unreasonable 5 refusal of counsel to accept service” and USCA’s “offices being closed due to the Covid- 6 19 crisis.” (See Opp. at 2:8-9.) Neither argument, however, demonstrates excusable 7 neglect. In particular, as defendants point out, counsel had no legal obligation to accept 8 service and USCA’s offices were not closed until after the deadline to serve had already 9 passed. (See Reply at 2:8-9; 4:27.) Accordingly, the Court turns to the second half of 10 the two-step analysis. 11 Under Rule 4(m), a district court, in the absence of a showing of good cause, 12 nonetheless has discretion to grant an extension. See Efaw, 473 F.3d at 1040. In 13 deciding whether to grant such an extension, a district court “may consider factors like a 14 statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and 15 eventual service.” See id. at 1041 (internal quotation and citation omitted). 16 Here, as to USCA, the Court finds each of the above-referenced factors weighs in 17 favor of granting an extension. First, it appears the statute of limitations on Nagy’s Title 18 VII claims has now run. See 42 U.S.C. § 2000e–5(f)(1) (providing Title VII action must be 19 filed “within ninety days” after plaintiff receives right to sue letter from Equal Employment 20 Opportunity Commission (“EEOC”)); (Compl. ¶ 7 (alleging instant action was filed “within 21 90 days of receipt of the EEOC right to sue letter”)). Next, USCA has not shown it has 22 been prejudiced by the delay in service. Lastly, USCA has had actual notice of the action 23 since at least May 26, 2020, when, as noted, it was served with the summons and 24 complaint. 25 Accordingly, the Court will grant Nagy an extension of the deadline to serve 26 USCA, specifically, an extension to May 26, 2020. 27 The Court next considers the above-referenced factors with respect to Alloway, 1 USCA, Alloway has not been served, Nagy’s Title VII claim against him, like the Title VII 2 || claims against USCA, would appear to be time-barred. Moreover, Alloway has not 3 || shown he will be prejudiced by the delay in service, and, as Alloway filed the instant 4 motion on June 16, 2020, it appears he has had actual notice of the action since at least 5 || that date. 6 Accordingly, the Court will grant Nagy an extension of the deadline to serve 7 || Alloway, specifically, an extension to September 4, 2020. 8 CONCLUSION 9 For the foregoing reasons, the Court orders as follows: 10 1. USCA and Alloway’s “Motion to Dismiss Plaintiff's Complaint for Insufficient 11 Service of Process” is hereby DENIED. g 12 2. The deadline to serve USCA is hereby EXTENDED to May 26, 2020. 13 3. The deadline to serve Alloway, and to file proof of such service, is hereby 14 EXTENDED to September 4, 2020. If Nagy fails to file proof of service by said 2 15 deadline, the Court, as to Alloway, will dismiss the action without prejudice a 16 pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. 17 IT IS SO ORDERED. 19 || Dated: August 24, 2020 inate a MU Lats 20 Uni States Dishict Judge 21 22 23 24 25 26 27 28