Tacori Enterprises v. Holition Limited et al

Filing 9

ORDER OF DISMISSAL by Magistrate Judge Charles F. Eick. In addition to dismissing this action for failure to effect timely service, the action is appropriately dismissed for failure to prosecute. It is Ordered that the action is dismissed without prejudice. Case Terminated. Made JS-6. (sp)

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FILED CLERK, U.S. DISTRICT COURT 1 JAN 820141 2 CENTRAl DISTRICT OF ALIFORN -. DEPU BY 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TACORI ENTERPRISES, 12 13 14 NO. CV 13-5741-E Plaintiff, ORDER OF DISMISSAL V. HOLITION LIMITED, ET AL., 15 Defendants. 16 17 18 Plaintiff filed this action on August 8, 2013. Plaintiff did not 19 file a proof of service of the Summons and Complaint within 120 days 20 thereafter. 21 22 On December 10, 2013, the Magistrate Judge filed an "Order to 23 Show Cause" ("OSC") . The OSC required that Plaintiff file a 24 declaration within twenty (20) days of December 10, 2013, showing good 25 cause, if there be any, why service of the Summons and Complaint was 26 not made upon Defendant within 120 days after the filing of the 27 Complaint. The OSC warned Plaintiff that failure to comply with the 28 OSC or failure to demonstrate good cause might result in the dismissal 1 of the action without prejudice. Nevertheless, Plaintiff failed to 2 respond to the OSC within the allotted time. 3 4 Under Rule 4(m) of the Federal Rules of Civil Procedure, the 5 Court may dismiss an action without prejudice if the summons and 6 complaint are not served on the defendant within 120 days after filing 7 the complaint or within the time specified by the Court. Efaw v. 8 Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). Rule 4(m) requires a 9 court to extend the time for service if a plaintiff shows good cause 10 for the failure to serve. "At a minimum, ’good cause’ means excusable 11 neglect." Bourdette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991) 12 Here, Plaintiff has not shown good cause for its failure to effect 13 timely service on the Defendant. 14 15 A court has "broad discretion" to extend the time for service 16 under Rule 4(m), even absent a showing of good cause. See Efaw V. 17 Williams, 473 F.3d at 1040-41; see also United States v. 2,164 18 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 19 366 F.3d 767, 773 (9th Cir. 2004) (Rule 4(m) gives courts "leeway to 20 preserve meritorious lawsuits despite untimely service of process") 21 A court may consider various factors including prejudice to the 22 defendant, actual notice, a possible limitations bar, and eventual 23 service. Efaw v. Williams, 473 F.3d at 1041. Any such dismissal 24 should be without prejudice. See Id. at 772. 25 26 In the present case, Plaintiff’s failure to comply with the OSC 27 renders an evaluation of these factors somewhat speculative. There 28 no evidence the Defendant has actual notice of this action. The 2 Is possible prejudice to the Defendant resulting from the delay is 2 unknown, as is the impact of dismissal on a possible future 3 limitations bar. There is no indication when, if ever, Plaintiff 4 eventually would effect service. Dismissal without prejudice under 5 Rule 4(m) would appear to be appropriate in the present case. 6 7 In addition to dismissing this action for failure to effect 8 timely service, the action is appropriately dismissed for failure to 9 prosecute. Plaintiff failed to file a timely declaration, despite a 10 Court order that Plaintiff do so. The Court has inherent power to 11 achieve the orderly and expeditious disposition of cases by dismissing 12 actions for failure to prosecute. See Link v. Wabash R.R., 370 U.S. 13 626, 629-30 (1962) 14 15 For all of the foregoing reasons, it is ordered that the action 16 is dismissed without prejudice. 17 18 DATED: , 2014. 19 20; 21 GEORGE H. KI CHIEF UNITED STATES D 22 23 24 25 26 27 28 3 CT JUDGE

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