Terrell v. Spencer ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AMY TERRELL, Case No.: 19-CV-1759-CAB-BGS 12 Plaintiff, ORDER DENYING MOTION TO 13 v. DISMISS 14 THOMAS B. MODLY, Acting Secretary, Department of the Navy, [Doc. No. 4] 15 Defendant. 16 17 18 Defendant has filed a motion to dismiss the complaint in this action under Federal 19 Rule of Civil Procedure 12(b)(5) for insufficient service of process because Plaintiff did 20 not serve the complaint in accordance with Federal Rule of Civil Procedure 4(i) within the 21 90 days required by Rule 4(m). In her opposition, Plaintiff concedes that she had not 22 adequately served the Attorney General of the United States, as required by Rule 4(i)(1)(B), 23 at the time of Defendant’s motion, but states that she remedied that defect in service. Thus, 24 Plaintiff asks for relief under Rule 4(m) for the delay in service. In its reply, Defendant 25 points out that the proof service that Plaintiff filed on January 6, 2020 [Doc. No. 5] relates 26 to a different case and does not demonstrate proper service of the summons and complaint 27 in this case on the Attorney General. Notably, however, Defendant does not dispute that 28 1 || Plaintiff has in fact effected service on the Attorney General since the filing of the motion 2 dismiss as represented by Plaintiff’s counsel in the opposition brief. 3 Ultimately, 1t appears that Defendant has been served in accordance with Rule 4(), 4 albeit not with the 90 days required by Rule 4(m). However, there is no argument of any 5 || prejudice to Defendant by allowing this case to proceed, and there is no indication of bad 6 ||faith by Plaintiff. Moreover, because Plaintiff could be time-barred from re-filing her 7 lawsuit, she would be prejudiced if the Court dismisses the complaint. See generally 8 || Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009) (reversing and ordering the 9 || district court to extend time for the plaintiffs to complete service under Rule 4(m) because 10 || the plaintiffs would be time-barred from re-filing their action). Accordingly, relief under 11 is appropriate. 12 In light of the foregoing, it is hereby ORDERED that Defendant’s motion to dismiss 13 DENIED. Defendant shall respond to the complaint on or before February 11, 2020. 14 It is SO ORDERED. 15 Dated: January 21, 2020 € ZL 16 Hon. Cathy Ann Bencivengo 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28