Kagabines v. Applied Business Services Incorporated

Filing 11

ORDER dismissing Plaintiff's Complaint (Doc. 1 ) without prejudice and terminating the case. Signed by Magistrate Judge Eileen S Willett on 10/19/2017. (KAS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jude Kagabines,
Plaintiff,

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ORDER

v.

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No. CV-17-01483-PHX-ESW

Applied Business Services Incorporated,

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Defendant.

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Plaintiff filed his Complaint (Doc. 1) on May 15, 2017. Pursuant to Fed. R. Civ.

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P. 4(m), Plaintiff must effectuate service of process upon the Defendant within ninety

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days of the filing of his Complaint. No proof of service has been filed, and the deadline

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for service of process has expired. On October 4, 2017, the Court ordered Plaintiff to

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show cause no later than October 16, 2017 why the Court should not dismiss Plaintiff’s

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Complaint for failure to timely serve pursuant to Fed. R. Civ. P. 4(m) (Doc. 10). Plaintiff

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has not filed a response to the Court’s Order.

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Under Fed. R. Civ. P. 4(m), “[i]f a defendant is not served within 90 days after the

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complaint is filed, the court—on motion or on its own after notice to the plaintiff—must

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dismiss the action without prejudice against that defendant or order that service be made

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within a specified time.” However, “if the plaintiff shows good cause for the failure, the

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court must extend the time for service for an appropriate period.” Id. As the Ninth

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Circuit Court of Appeals has explained, “Rule 4(m) requires a two-step analysis in

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deciding whether or not to extend the prescribed time period for the service of a

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complaint.” In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001) (citing Fed. R. Civ. P. 4(m)

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and Petrucelli v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1305 (3d Cir. 1995)).

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“First, upon a showing of good cause for the defective service, the court must extend the

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time period. Second, if there is no good cause, the court has the discretion to dismiss

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without prejudice or to extend the time period.” Id. The Ninth Circuit has found it

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“unnecessary, however, to articulate a specific test that a court must apply in exercising

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its discretion under Rule 4(m),” noting “only that, under the terms of the rule, the court's

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discretion is broad.” Id. at 513.

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Plaintiff has failed to show good cause for defective service in this case.

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For the reasons set forth herein,

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IT IS ORDERED dismissing Plaintiff’s Complaint (Doc.1) without prejudice.

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IT IS FURTHER ORDERED terminating the case.

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Dated this 19th day of October, 2017.

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