Sandoval v. United States ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VINCENT SANDOVAL, Case No.: 20-CV-495 JLS (AGS) 12 Plaintiff, ORDER DISMISSING ACTION FOR 13 v. FAILURE TIMELY TO EFFECT SERVICE PURSUANT TO 14 UNITED STATES OF AMERICA, FEDERAL RULE OF CIVIL 15 Defendant. PROCEDURE 4(m) 16 (ECF No. 3) 17 18 On September 1, 2020, the Court ordered Plaintiff Vincent Sandoval to “show cause 19 why this action should not be dismissed for failure timely to effect service.” ECF No. 3 20 (“OSC”) at 1. The Court directed Plaintiff to file either a response or proof of service 21 within fourteen days of the electronic docketing of the Order to Show Cause, i.e., on or 22 before September 15, 2020. Id. As of the date of this Order, Plaintiff has filed neither. 23 Rule 4 of the Federal Rules of Civil Procedure provides: 24 [i]f 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 25 plaintiff—must dismiss the action without prejudice against that 26 defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court 27 must extend the time for service for an appropriate period. 28 1 Fed. R. Civ. P. 4(m). “In the absence of service of process (or waiver of service by the 2 defendant) . . . a court ordinarily may not exercise power over a party the complaint names 3 as a defendant.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 4 (1999); Crowley v. Bannister, 734 F.3d 967, 974–75 (9th Cir. 2013) (“A federal court is 5 without personal jurisdiction over a defendant unless the defendant has been served in 6 accordance with Fed. R. Civ. P. 4.”) (citations omitted). 7 As noted in the Court’s September 1, 2020 Order to Show Cause, the initial ninety 8 days provided by Rule 4(m) to effect service on United States of America has long since 9 passed. See OSC at 1 (deadline for service was June 15, 2020); see also Fed. R. Civ. P. 10 4(l)(1) (“[P]roof of service must be made to the court.”); S.D. Cal. CivLR 5.2 (“Proofs of 11 service . . . must be filed in the clerk’s office promptly . . . .”). The district court may not 12 sua sponte dismiss a complaint for lack of service, however, “without first giving notice to 13 the plaintiff and providing an opportunity for him to show good cause for the failure to 14 effect timely service.” Crowley, 734 F.3d at 975 (citation omitted). Indeed, the district 15 court has broad discretion under Rule 4(m) to extend time for service upon a showing of 16 good cause even after the service period has expired. See Mann v. Am. Airlines, 324 F.3d 17 1088, 1090 (9th Cir. 2003). 18 Here, the Court provided Plaintiff notice, along with an additional fourteen days to 19 serve Defendants, and gave Plaintiff the opportunity to show good cause as to why he failed 20 timely to serve Defendant. See generally OSC. Plaintiff, however, has not responded to 21 the Court’s Order to Show Cause by either filing proof of service or seeking additional 22 time to serve Defendant. Further, Plaintiff has failed to file any response at all to the 23 Court’s September 1, 2020 Order to Show Cause explaining his failure timely to serve 24 Defendant. The Court therefore concludes that dismissal without prejudice pursuant to 25 Rule 4(m) is appropriate. 26 / / / 27 / / / 28 / / / 1 In light of the foregoing, the Court DISMISSES WITHOUT PREJUDICE this 2 || action for failure timely to effect service pursuant to Federal Rule of Civil Procedure 4(m). 3 || The Clerk of Court SHALL CLOSE the file. 4 IT IS SO ORDERED. 5 6 || Dated: September 17, 2020 tt 7 ja Janis L. Sammartino 3 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28