G & G Closed Circuit Events, LLC v. Parker ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 G & G CLOSED CIRCUIT EVENTS, Case No.: 20-CV-1017 TWR (MDD) LLC, 12 ORDER DISCHARGING ORDER Plaintiff/Counter-Defendant, 13 TO SHOW CAUSE AND v. EXTENDING DEADLINE TO 14 SERVE THIRD-PARTY TIMOTHY PARKER and DIEGO & 15 COMPLAINT DANTE, LLC, d/b/a Chula Vista Brewery, 16 Defendants/Counter-Claimants. (ECF Nos. 9, 26, 27) 17 ___________________________________ 18 TIMOTHY PARKER and DIEGO & 19 DANTE BREWERY, LLC, 20 Third-Party Plaintiffs, 21 v. 22 LAW OFFICE OF THOMAS P. RILEY, 23 P.C., and THOMAS P. RILEY, Third-Party Defendants. 24 25 26 On September 27, 2021, the Court ordered Defendants, Counter-Claimants, and 27 Third-Party Plaintiffs Timothy Parker and Diego & Dante Brewery, LLC to show cause 28 why their Third-Party Complaint against Third-Party Defendants Law Office of Thomas 1 P. Riley, P.C. and Thomas P. Riley should not be dismissed for failure to effect service 2 pursuant to Federal Rule of Civil Procedure 4(m) and Civil Local Rule 4.1(b) and for failure 3 to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and Civil Local Rule 4 41.1(a). (See generally ECF No. 26 at 2–3 (“OSC”).) As explained in the Court’s Order 5 to Show Cause, although Third-Party Plaintiffs filed their Third-Party Complaint on 6 August 13, 2020, (see ECF No. 9 (“3d-Party Compl.”)), they have not filed proof of service 7 or taken any other action with regard to that filing for well over a year. (See generally 8 Docket.) 9 Third-Party Plaintiffs filed an untimely response to the Court’s Order to Show Cause 10 on October 6, 2021.1 (See generally ECF No. 27 (“Resp.”).) In their Response, Third- 11 Party Plaintiffs’ attorney, Trevor McCann, explains that, “[w]ith the passage of time, [his] 12 memory has dimmed about the events to led to his failure to timely serve the Summons on 13 Third-party Complaint and Third-party Complaint,” but that, “[a]fter reviewing his files, 14 [he] believes that his oversight was due to an initial issue with the CM/ECF system which 15 was then compounded the case was dormant while the Court considered Plaintiff’s 16 motions” at ECF Nos. 11 through 13 (the “Plaintiff’s Motions”). (See id. ¶ 14.) 17 Specifically, “[a]t times, [Mr.] McCann has experienced issues when receiving CM/ECF 18 system messages,” (see id. ¶ 6), and, “[f]or reasons [he] either does not know, or does not 19 recall,” instead of receiving the Summons on Third-Party Complaint docketed at ECF No. 20 10 on August 14, 2020, he received a PDF including only the docket text. (See id. ¶ 7.) 21 Mr. McCann contends that he only discovered that he had failed to serve Third-Party 22 Defendants over a year later, in the last week of August 2021, following the Court’s 23 August 2, 2021 ruling on Plaintiff’s Motions. (See id. ¶ 11.) He indicates that he attempted 24 to serve Third-Party Defendants on August 30, 2021, (see id. ¶ 12), but has received no 25 26 1 The Court ordered Third-Party Plaintiffs to file their response to the Order to Show Cause “within seven 27 (7) days of the electronic docketing of this Order.” (See OSC at 3 (emphasis omitted).) Pursuant to 28 Federal Rule of Civil Procedure 6(a)(1), the default for computing time is calendar days, and consequently 1 response. (See id. ¶ 13.) In short, Third-Party Plaintiffs “maintain, and [Mr.] McCann 2 believes, that absent the long delay [in ruling on Plaintiff’s Motions], [Mr.] McCann would 3 have discovered his mistake earlier and attempted to serve [Third-Party Defendants] 4 sooner.” (See id. ¶ 15.) Third-Party Plaintiffs close by arguing that “dismissal of their 5 Third-party Complaint is improper and will prevent them from adjudicating their claim on 6 the merits,” and that Third-Party Defendants “will not be prejudiced if this Court allows 7 [Third-Party Plaintiffs]s to pursue their claims” because, as Plaintiff’s counsel of record, 8 they “received (and presumably read) the Third-party Complaint.” (See id. ¶ 16.) 9 Under the Federal Rules of Civil Procedure, “[t]he plaintiff is responsible for having 10 the summons and complaint served within” ninety days of filing their complaint. See Fed. 11 R. Civ. P. 4(c)(1). “If a defendant is not served within 90 days after the complaint is filed, 12 the court—on motion or on its own after notice to the plaintiff—must dismiss the action 13 without prejudice against that defendant or order that service be made within a specified 14 time.” Fed. R. Civ. P. 4(m). “But if the plaintiff shows good cause for the failure, the court 15 must extend the time for service for an appropriate period.” Id. The court also “may, for 16 good cause shown, extend” a deadline “on a motion made after the time has expired if the 17 party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). 18 “The rule places the burden of showing good cause for failure to meet the [90] day 19 deadline upon the party on whose behalf service was required.” Wei v. Hawaii, 763 F.2d 20 370, 372 (9th Cir. 1985). The dilatory party may show good cause by demonstrating that 21 “either he or his attorney attempted to serve the defendants . . . , was confused about the 22 requirements for service of process . . . , or was prevented from effecting service within the 23 [90] day limit by factors beyond his control.” See id. (citations omitted). “A showing of 24 ‘good cause’ within the meaning of Rule 4([m]) . . . contemplates more than a simple 25 averment that counsel inadvertently forgot about the time limit that the rule imposes” 26 because otherwise “the good cause exception would swallow the rule.” See id. 27 Even absent a showing of good cause, however, the court retains discretion to extend 28 the time for service. See Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). “In 1 making extension decisions under Rule 4(m) a district court may consider factors ‘like a 2 statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual 3 service.’” Id. (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 4 1998)). But the court’s discretion is not “limitless” and may be abused. See id. 5 Here, Third-Party Plaintiffs fail to demonstrate that their failure timely to serve 6 Third-Party Defendants rose to anything other than inadvertence. They provide no 7 explanation for why they did not immediately follow up to obtain a copy of the Summons 8 after receiving the incorrect PDF upon initially downloading the document. (Cf. Resp. 9 ¶ 7.) Rather, it appears that the ninety-day deadline for service came and went without any 10 effort on behalf of Third-Party Plaintiffs to serve their Third-Party Complaint. Further, 11 when Third-Party Plaintiffs discovered over a year later that they had forgotten to serve 12 Third-Party Defendants, they did not attempt to obtain an extension of the service deadline 13 from the Court pursuant to Rule 6(b)(1)(B). (Cf. Resp. ¶¶ 11–12.) Accordingly, Third- 14 Party Plaintiffs fail to carry their burden of demonstrating good cause for their failure 15 timely to serve Third-Party Defendants.2 16 Were Third-Party Defendants not Plaintiff’s counsel in this action, the Court would 17 dismiss without prejudice the Third-Party Complaint pursuant to Rule 4(m). Under the 18 unique circumstances of this case, however, the Court determines that it is appropriate to 19 exercise its discretion briefly to extend Third-Party Plaintiffs’ deadline to effect service. 20 As Third-Party Plaintiffs explain, (see Resp. ¶ 16), Third-Party Defendants have received 21 actual notice of the Third-Party Complaint by virtue of being Plaintiff’s counsel of record. 22 Further, because Third-Party Defendants are defending Plaintiff against similar claims as 23 those alleged in the Third-Party Complaint, (compare ECF No. 8 (counterclaims against 24 Plaintiff), with 3d-Party Compl.), the Court concludes that it is highly unlikely that a brief 25 extension will prejudice Third-Party Defendants. 26 27 2 Although not part of the Court’s consideration here, Third Party Plaintiffs’ failures of oversight are only 28 compounded by their inability timely to respond to the Court’s Order to Show Cause, see supra note 1, 1 Accordingly, the Court DISCHARGES its Order to Show Cause and EXTENDS 2 || Third-Party Plaintiffs’ deadline to effect service to thirty (30) calendar days after this Order 3 been docketed. Third-Party Plaintiffs SHALL FILE Proof of Service on Third-Party 4 || Defendants within two (2) days of service. Absent extraordinary circumstances, no further 5 || extensions for service will be granted. Further, failure to comply with this Order shall 6 || result in the dismissal without prejudice of the Third-Party Complaint for failure to effect 7 || service pursuant to Rule 4(m) and Civil Local Rule 4.1(b); failure to prosecute pursuant to 8 || Rule 41(b) and Civil Local Rule 41.1(a); and failure to comply with the Federal Rules of 9 || Civil Procedure, Civil Local Rules, and this Order pursuant to Civil Local Rule □□□□ □□□□ 10 IT IS SO ORDERED. 1] 12 ||Dated: October 14, 2021 —_—— I [59 (4 bre 14 Honorable Todd W. Robinson 1 United States District Court 16 17 18 19 20 21 22 23 24 25 26 27 28