Jordan v. U.S. Department of Labor ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHARLES R. JORDAN, FRANCES Case No.: 19-CV-1451 JLS (RBB) JORDAN, 12 ORDER DISMISSING ACTION FOR Plaintiffs, 13 FAILURE TIMELY TO EFFECT v. SERVICE PURSUANT TO 14 FEDERAL RULE OF CIVIL UNITED STATES DEPARTMENT OF 15 PROCEDURE 4(m) LABOR; POSTMASTER GENERAL, 16 UNITED STATES POSTAL SERVICE; (ECF No. 6) WANDA FREEMAN; THOMAS R. 17 AVERY; VICTOR FIGUEROA; DIANA 18 TORPEY; MIKE ENGELS; WAYNE DAVENPORT; LEAH ALVAREZ; 19 R. VIGIL DIXON; and DOES 1–10, 20 Defendants. 21 22 On September 1, 2020, the Court ordered Plaintiffs Charles R. Jordan and Frances 23 Jordan to “show cause why this action should not be dismissed for failure timely to effect 24 service.” ECF No. 6 (“OSC”) at 2. The Court directed Plaintiffs to file either a response 25 or proofs of service within fourteen days of the electronic docketing of the Order to Show 26 Cause, i.e., on or before September 15, 2020. Id. As of the date of this Order, Plaintiffs 27 have filed neither. 28 / / / 1 Rule 4 of the Federal Rules of Civil Procedure provides: 2 [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 3 plaintiff—must dismiss the action without prejudice against that 4 defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court 5 must extend the time for service for an appropriate period. 6 7 Fed. R. Civ. P. 4(m). “In the absence of service of process (or waiver of service by the 8 defendant) . . . a court ordinarily may not exercise power over a party the complaint names 9 as a defendant.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 10 (1999); Crowley v. Bannister, 734 F.3d 967, 974–75 (9th Cir. 2013) (“A federal court is 11 without personal jurisdiction over a defendant unless the defendant has been served in 12 accordance with Fed. R. Civ. P. 4.”) (citations omitted). 13 As noted in the Court’s September 1, 2020 Order to Show Cause, the initial ninety 14 days provided by Rule 4(m) to effect service on Defendants United States Department of 15 Labor; Postmaster General, United States Postal Service; Wanda Freeman; Thomas R. 16 Avery; Victor Figueroa; Diana Torpey; Mike Engels; Wayne Davenport; Leah Alvarez; 17 and R. Vigil Dixon has long since passed. See OSC at 1 (deadline for service was 18 December 16, 2019); see also Fed. R. Civ. P. 4(l)(1) (“[P]roof of service must be made to 19 the court.”); S.D. Cal. CivLR 5.2 (“Proofs of service . . . must be filed in the clerk’s office 20 promptly . . . .”). The district court may not sua sponte dismiss a complaint for lack of 21 service, however, “without first giving notice to the plaintiff and providing an opportunity 22 for him to show good cause for the failure to effect timely service.” Crowley, 734 F.3d at 23 975 (citation omitted). Indeed, the district court has broad discretion under Rule 4(m) to 24 extend time for service upon a showing of good cause even after the service period has 25 expired. See Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). 26 Here, the Court provided Plaintiffs notice, along with an additional fourteen days to 27 serve Defendants, and gave Plaintiffs the opportunity to show good cause as to why they 28 failed timely to serve Defendants. See generally OSC. Plaintiffs, however, have not 1 responded to the Court’s Order to Show Cause by either filing proofs of service or seeking 2 || additional time to serve Defendants. Further, Plaintiffs have failed to file any response at 3 || all to the Court’s September 1, 2020 Order to Show Cause explaining their failure timely 4 ||to serve Defendants. The Court therefore concludes that dismissal without prejudice 5 || pursuant to Rule 4(m) 1s appropriate. 6 In light of the foregoing, the Court DISMISSES WITHOUT PREJUDICE this 7 || action for failure timely to effect service pursuant to Federal Rule of Civil Procedure 4(m). 8 || The Clerk of Court SHALL CLOSE the file. 9 IT IS SO ORDERED. 10 11 ||Dated: September 17, 2020 tt 12 pen Janis L. Sammartino United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28