LAWRENCE J HOFFART et al v. Washington Mutual Bank National Association

Filing 9

ORDER OF DISMISSAL by Judge George H. King. It is Ordered that this action is dismissed without prejudice. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 LAWRENCE J. HOFFART and SANDRA M. HOFFART, ) ) ) Plaintiffs, ) ) v. ) ) WASHINGTON MUTUAL BANK, ) NATIONAL ASSOCIATION, a domestic ) corporation, ) ) Defendant. ) ) ___________________________________) NO. CV 12-10465-E ORDER OF DISMISSAL 18 19 Plaintiffs paid the filing fee and filed a Complaint on 20 December 6, 2012. Plaintiffs have not filed any proof of service of 21 the Summons and Complaint. 22 Court ordered Plaintiffs to show cause in writing, no later than 23 April 30, 2013, why this action should not be dismissed for lack of 24 prosecution and for failure to comply with Rule 4(m) of the Federal 25 Rules of Civil Procedure. 26 “[f]ailure to file a timely response to this Order may result in 27 dismissal of the action.” 28 response to the Minute Order within the allotted time. By Minute Order filed April 10, 2013, the The Minute Order warned Plaintiffs that Nevertheless, Plaintiffs did not file any 1 Under Rule 4(m) of the Federal Rules of Civil Procedure, the 2 Court may dismiss an action without prejudice if the summons and 3 complaint are not served on the defendant within 120 days after filing 4 the complaint or within the time specified by the Court. 5 Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). 6 court to extend the time for service if a plaintiff shows good cause 7 for the failure to serve. 8 neglect.” 9 Here, Plaintiffs have not shown good cause for their failure to effect 10 Efaw v. Rule 4(m) requires a “At a minimum, ‘good cause’ means excusable Bourdette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991). timely service on the Defendant. 11 12 A court has “broad discretion” to extend the time for service 13 under Rule 4(m), even absent a showing of good cause. 14 Williams, 473 F.3d at 1040-41; see also United States v. 2,164 15 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 16 366 F.3d 767, 773 (9th Cir. 2004) (Rule 4(m) gives courts “leeway to 17 preserve meritorious lawsuits despite untimely service of process”). 18 A court may consider various factors including prejudice to the 19 defendant, actual notice, a possible limitations bar, and eventual 20 service. 21 should be without prejudice. 22 Plaintiffs’ failure to comply with the Minute Order renders an 23 evaluation of these factors somewhat speculative. 24 evidence that Defendant has actual notice of this action. 25 possible prejudice to the Defendant resulting from the delay is 26 unknown, as is the impact of dismissal on a possible future 27 limitations bar. 28 eventually would effect service. Efaw v. Williams, 473 F.3d at 1041. See id. at 772. See Efaw v. Any such dismissal In the present case, There is no The There is no indication when, if ever, Plaintiffs 2 1 Service of the Summons and Complaint by the United States 2 Marshals Service is not an appropriate option in the present case. 3 The Court generally will order Marshals’ service when a plaintiff, in 4 forma pauperis, files a complaint that is not dismissed sua sponte 5 under 28 U.S.C. § 1915(e)(2)(B). 6 Plaintiffs are not in forma pauperis. 7 discretion to order Marshals’ service of a non-IFP complaint “in 8 certain limited circumstances as when a hostile defendant threatens 9 injury to the process server.” See Fed. R. Civ. P. 4(c)(3). Rule 4(c)(3) grants the Court Wright and Miller, Federal Practice 10 and Procedure, § 1090, p. 476 (3rd ed. 2002). 11 Plaintiffs have not made any such showing. 12 13 In addition to dismissing this action for failure to effect 14 timely service, the Court may dismiss this action for failure to 15 prosecute. 16 Order that Plaintiffs do so. 17 the orderly and expeditious disposition of cases by dismissing actions 18 for failure to prosecute. 19 30 (1962). Neither Plaintiff filed a timely response, despite a Court The Court has inherent power to achieve See Link v. Wabash R.R., 370 U.S. 626, 629- 20 21 22 For all of the foregoing reasons, it is ordered that this action is dismissed without prejudice. 23 24 LET JUDGMENT BE ENTERED ACCORDINGLY. 25 26 DATED: 5/13 , 2013. 27 ______________________________ 28 UNITED STATES DISTRICT JUDGE 3

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