Schwartz Foundation v. Schwartz ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SCHWARTZ FOUNDATION, et al., Case No. 23-cv-06086-JSC 8 Plaintiffs, ORDER DISMISSING CASE FOR 9 v. FAILURE TO SERVE 10 MARGOT D SCHWARTZ, Re: Dkt. Nos. 27, 28, 30 Defendant. 11 12 13 Plaintiffs filed this action on November 22, 2023. (Dkt. No. 1.)1 Pursuant to the Federal 14 Rules of Civil Procedure, Plaintiffs were required to serve Defendant with the complaint and 15 summons within 90 days of the complaint’s filing. Fed. R. Civ. P. 4(b), (c), (m). Because 16 Plaintiffs failed to serve Defendant before the deadline, the Court ordered Plaintiffs to show cause 17 why the action should not be dismissed without prejudice for failure to serve. (Dkt. No. 27.) 18 Plaintiffs responded by swearing “[s]ervice of the summons and complaint in this action has been 19 accomplished pursuant to Code of Civil Procedure section 415.40.” (Dkt. No. 28.) The Court 20 then directed “[t]his action will be dismissed without prejudice unless Plaintiff files the overdue 21 proof of service by May 13, 2024.” (Dkt. No. 29.) On May 13, 2024, Plaintiffs filed a “corrected 22 declaration” explaining Defendant has not been served and stating Plaintiffs’ intention to file a 23 motion for leave to publish service pursuant to California Code of Civil Procedure § 415.50. (Dkt. 24 No. 30.) 25 Proper service of process is a prerequisite to the Court’s exercise of personal jurisdiction 26 over Defendant. Fed. R. Civ. P. 4(k); see Crowley v. Bannister, 734 F.3d 967, 974-75 (9th Cir. 27 1 2013) (“A federal court is without personal jurisdiction over a defendant unless the defendant has 2 been served in accordance with Fed. R. Civ. P. 4.” (cleaned up).). Defendant may be served 3 according to California law, which permits “summons [to] be served in a manner which is 4 reasonably calculated to give actual notice to the party to be served.” Cal. Civ. Proc. Code § 5 413.30; see Fed. R. Civ. P. 4(e)(1). “If a defendant is not served within 90 days after the 6 complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the 7 action without prejudice against that defendant or order that service be made within a specified 8 time.” Fed. R. Civ. P. 4(m). 9 Plaintiffs have twice violated the Court’s extended deadlines to file proof of service. (Dkt. 10 Nos. 26 (“Plaintiffs shall file their Proof of Service on Defendant on or before May 2, 2024.”), 29 11 (“This action will be dismissed without prejudice unless Plaintiff files the overdue proof of service 12 by May 13, 2024.”).) Plaintiffs have also violated the Court’s order to “show good cause in a 13 writing, supported by evidence, as to why they did not meet the Court’s extended May 2, 2024 14 deadline” because Plaintiffs’ responses fail to provide evidence substantiating Plaintiffs’ failed 15 service attempts or explaining why those attempts have been unsuccessful. (Dkt. No. 27; see Dkt. 16 Nos. 28, 30.) Indeed, Plaintiffs merely say: 17 I thought that the Summons and Complaint has been served via out of state certified/return receipt mail because a “green card” came back 18 on one of the service attempts with what appeared to me a mark on it that indicated a signature. After researching the United State Postal 19 Service Tracking, I have concluded that the Summons and Complaint cannot be demonstrably shown to have been served on either of the 20 certified/return receipt services attempts. (I previously caused Summons to two out-of-state addresses to be issued in this action as 21 to defendant Margot Schwartz. I understand both the Milwaukee and New Mexico locations to be remotely located and cannot be served 22 via process server.) 23 (Dkt. No. 30.) Plaintiffs’ explanation boils down to they thought they had served Defendant but 24 did not. This is insufficient to establish good cause for Plaintiffs’ failure to serve. And while 25 Plaintiffs baselessly claim the Milwaukee and New Mexico locations are too remotely located to 26 reach via process server, a simple reference to a map undermines Plaintiffs’ characterization of 27 both addresses. (Dkt. Nos. 21, 24.) 1 Court’s extended deadlines. Plaintiffs offer no adequate explanation justifying Plaintiffs’ failure, 2 so Plaintiffs’ failure to serve lacks good cause. Accordingly, the Court DISMISSES without 3 prejudice this action for failure to serve pursuant to Federal Rule of Civil Procedure 4(m). 4 IT IS SO ORDERED. 5 Dated: May 15, 2024 6 7 ne ACQWELINE SCOTT CORLEY 8 United States District Judge 9 10 11 12 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28