Rosales, et al. v. Dutschke, et al.

Filing 28

ORDER signed by Judge Kimberly J. Mueller on 12/4/2015 DISCHARGING the 14 Order to Show Cause; GRANTING the plaintiff's request for extension to serve process pursuant to Rule 4(m); FINDING that the time for service of the complaint is retroactively extended by 30 days to 10/26/2015. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROSALES, et al.,

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No. 2:15-cv-01145-KJM-KJN
Plaintiffs,

v.

ORDER

DUTSCHKE, et al.,
Defendants.

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On November 4, 2015, the court ordered plaintiffs to show cause within 10 days of

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why the claims against defendants Kenneth Meza, Robert Mesa, Richard Tellow, Amy Dutschke

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and John Rydzik, should not be dismissed under Rule 4(m) for lack of timely service of summons

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and complaint. ECF No. 14. The court issued its order because the docket did not show proof of

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service for any of these five defendants. Id. at 3.

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On November 12, 2015, plaintiffs filed a timely response to the court’s order to

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show cause, ECF No. 26, and filed summons returned executed for the five defendants at issue,

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ECF Nos. 15, 16, 19–21. The returned summons for Ms. Dutschke and Mr. Rydzik make a

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preliminary showing of having timely served them through an authorized agent pursuant to

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Federal Rule of Civil Procedure 4(e)(2)(C). See ECF Nos. 15, 16. The returned summons for

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Mr. Meza, Mr. Mesa, and Mr. Tellow make a preliminary showing of having served them through
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substituted service in accordance with California law, see Fed. R. Civ. P. 4(e)(1), but the service

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was untimely under Rule 4(m). See ECF Nos. 19–21. Plaintiffs filed the complaint on May 27,

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2015, so service was due 120 days later, on September 24, 2015. See Fed. R. Civ. P. 4(m). The

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returned summons show that plaintiffs eventually served Mr. Meza on September 28, 2015, and

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Mr. Mesa and Mr. Tellow on October 17, 2015. See ECF Nos. 19–21.

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If a plaintiff shows good cause for failure of timely service, the court has

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discretion under Rule 4(m) to extend the time to serve process even after the prescribed 120-day

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period has expired. Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). Here, the

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returned summons for Mr. Meza, Mr. Mesa, and Mr. Tellow show that plaintiffs had made

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unsuccessful attempts at service within the 120-day period. See ECF Nos. 19–21. In addition,

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plaintiffs eventually served defendants within 30 days after the 120-day period had expired.

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Good cause appearing, the court grants plaintiffs’ request for an extension to serve process nunc

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pro tunc and discharges the court’s November 4, 2015 Order to Show Cause. This order does not

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preclude defendants’ challenging the sufficiency of service through a properly noticed motion.

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For the foregoing reasons, it is HEREBY ORDERED that:

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1. This court’s Order to Show Cause, ECF No. 14, is DISCHARGED.

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2. The court GRANTS nunc pro tunc plaintiff’s request for an extension to serve

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process pursuant to Rule 4(m). Accordingly, the time for service of the complaint is retroactively

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extended by 30 days to October 26, 2015.

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IT IS SO ORDERED.
DATED: December 4, 2015.

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UNITED STATES DISTRICT JUDGE

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