Johnson v. Heiderman et al

Filing 17

ORDER signed by Judge Kimberly J. Mueller on 05/31/12 ORDERING that this action is DISMISSED without prejudice; within 3 days of the date of this order, plaintiff shall file a proof of service showing he has served a copy of this order by mail on all named defendants. CASE CLOSED (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SCOTT N. JOHNSON,

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Plaintiff,
vs.

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No. CIV S 11-2742 KJM EFB

JAMES LAURENCE HEIDERMAN,
et al.,
.

ORDER

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Defendants
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Plaintiff filed his complaint on October 18, 2011 naming James Laurence

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Heiderman, Carl J. Hickey and Lois C. Hickey as defendants. ECF No. 1. On November 21,

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2011 and January 5, 2012, plaintiff filed notices that the summonses had not been executed.

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ECF Nos. 5 & 6.
On March 6, 2012, the court directed plaintiff to show cause why this action

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should not be dismissed in light of plaintiff’s failure to effect service. ECF No. 8. Later that

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same day, plaintiff filed a notice that the parties had reached a settlement and would file

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dispositional documents within twenty days. He did not identify the parties to the settlement.

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ECF No. 9.

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On March 22, 2012, plaintiff responded to the court’s order to show cause. He

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said he sent a process server to the Hickeys’ home but that Lois Hickey would not open the door.

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He does not describe any further attempts to serve the Hickeys and does not mention defendant

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Heiderman at all. ECF No. 11.

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Since March 22, plaintiff has sought and obtained two extensions of time to file

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dispositional documents, saying that the parties “are in the process of settling” the case, despite

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his earlier claim that the case had settled. Compare ECF No. 9 with ECF Nos. 12 and 14. He

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has now requested a third extension of time, again claiming that the parties are in the process of

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settling the case. ECF No. 16. Plaintiff has never identified the defendants who are settling with

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him and he has not provided proof of service of his extension requests on any defendants.
Under Rule 4(m) of the Federal Rules of Civil Procedure, service on defendants

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must be made within 120 days of the filing of the complaint. Service of process is the

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mechanism by which a court “acquires the power to enforce a judgment against the defendant’s

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person or property.” S.E.C. v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007) (internal quotation,

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citation omitted). If a plaintiff does not show good cause for failure timely to effect service, the

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court has the discretion to dismiss the complaint. Lemoge v. United States, 587 F.3d 1188, 1198

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(9th Cir. 2009). It is plaintiff’s burden to demonstrate good cause. Habib v. General Motors

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Corp., 15 F.3d 72, 73 (6th Cir. 1994). “At a minimum, ‘good cause’ means excusable neglect.”

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Full Circle Sales, Inc. v. Organic Alliance, Inc., No. 10-CV-01615 LHK, 2010 WL 3324707, at

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*1 (N.D. Cal. Aug. 20, 2010).

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Here, plaintiff has said only that Mrs. Hickey refused to open the door to his

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process server and does not address other methods of service available to him. See FED. R. CIV.

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P. 4(e)(1). He does not discuss any attempts to serve defendant Heiderman. He has not shown

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good cause for his failure timely to serve defendants.

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The fact that some unidentified defendants may be in settlement negotiations with
plaintiff may suggest that certain defendants have not been prejudiced by plaintiff’s failure to
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serve. Neither the defendants’ actual knowledge of the suit nor the absence of prejudice to them

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is sufficient to establish good cause, however. Despain v. Salt Lake Area Metro Gang Unit, 13

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F.3d 1436, 1438-39 (10th Cir. 1994), superseded by Rule on other grounds as stated in Lorenzen

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v. United States, 236 F.R.D. 553 (D. Wyo. 2006).

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Despite plaintiff’s having not demonstrated good cause for his failure to serve

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defendants, this court could exercise discretion to extend time for service. Efaw v. Williams, 473

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F.3d 1038, 1041 (9th Cir. 2007). That plaintiff is involved in settlement negotiations is one

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factor the court considers, but this court does not find it determinative here, taking into account

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all the circumstances. See Full Circle Sales, Inc, 2010 WL 3324707, at *1. Plaintiff first

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represented to the court that the case had settled, but has now sought a third extension,

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explaining that he is “in the process” of settling with unidentified defendants who have not made

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any appearance. As with his inadequate attempts to serve, plaintiff’s inconsistent representations

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about the progress or status of settlement in this case do not support providing him further time

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to pursue this action.

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IT IS THEREFORE ORDERED that:

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1. This action is dismissed without prejudice; and

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2. Within three days of the date of this order, plaintiff shall file a proof of service

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showing he has served a copy of this order by mail on all named defendants.

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DATED: May 31, 2012.

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UNITED STATES DISTRICT JUDGE

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