Tacori Enterprises v. Holition Limited et al
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)
CLERK, U.S. DISTRICT COURT
CENTRAl DISTRICT OF ALIFORN
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
NO. CV 13-5741-E
ORDER OF DISMISSAL
HOLITION LIMITED, ET AL.,
Plaintiff filed this action on August 8, 2013. Plaintiff did not
file a proof of service of the Summons and Complaint within 120 days
On December 10, 2013, the Magistrate Judge filed an "Order to
Show Cause" ("OSC") . The OSC required that Plaintiff file a
declaration within twenty (20) days of December 10, 2013, showing good
cause, if there be any, why service of the Summons and Complaint was
not made upon Defendant within 120 days after the filing of the
Complaint. The OSC warned Plaintiff that failure to comply with the
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.
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.
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
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.
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
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.
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)
For all of the foregoing reasons, it is ordered that the action
16 is dismissed without prejudice.
GEORGE H. KI
CHIEF UNITED STATES D
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?