Rosales, et al. v. Dutschke, et al.
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.)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ROSALES, et al.,
DUTSCHKE, et al.,
On November 4, 2015, the court ordered plaintiffs to show cause within 10 days of
why the claims against defendants Kenneth Meza, Robert Mesa, Richard Tellow, Amy Dutschke
and John Rydzik, should not be dismissed under Rule 4(m) for lack of timely service of summons
and complaint. ECF No. 14. The court issued its order because the docket did not show proof of
service for any of these five defendants. Id. at 3.
On November 12, 2015, plaintiffs filed a timely response to the court’s order to
show cause, ECF No. 26, and filed summons returned executed for the five defendants at issue,
ECF Nos. 15, 16, 19–21. The returned summons for Ms. Dutschke and Mr. Rydzik make a
preliminary showing of having timely served them through an authorized agent pursuant to
Federal Rule of Civil Procedure 4(e)(2)(C). See ECF Nos. 15, 16. The returned summons for
Mr. Meza, Mr. Mesa, and Mr. Tellow make a preliminary showing of having served them through
substituted service in accordance with California law, see Fed. R. Civ. P. 4(e)(1), but the service
was untimely under Rule 4(m). See ECF Nos. 19–21. Plaintiffs filed the complaint on May 27,
2015, so service was due 120 days later, on September 24, 2015. See Fed. R. Civ. P. 4(m). The
returned summons show that plaintiffs eventually served Mr. Meza on September 28, 2015, and
Mr. Mesa and Mr. Tellow on October 17, 2015. See ECF Nos. 19–21.
If a plaintiff shows good cause for failure of timely service, the court has
discretion under Rule 4(m) to extend the time to serve process even after the prescribed 120-day
period has expired. Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). Here, the
returned summons for Mr. Meza, Mr. Mesa, and Mr. Tellow show that plaintiffs had made
unsuccessful attempts at service within the 120-day period. See ECF Nos. 19–21. In addition,
plaintiffs eventually served defendants within 30 days after the 120-day period had expired.
Good cause appearing, the court grants plaintiffs’ request for an extension to serve process nunc
pro tunc and discharges the court’s November 4, 2015 Order to Show Cause. This order does not
preclude defendants’ challenging the sufficiency of service through a properly noticed motion.
For the foregoing reasons, it is HEREBY ORDERED that:
1. This court’s Order to Show Cause, ECF No. 14, is DISCHARGED.
2. The court GRANTS nunc pro tunc plaintiff’s request for an extension to serve
process pursuant to Rule 4(m). Accordingly, the time for service of the complaint is retroactively
extended by 30 days to October 26, 2015.
IT IS SO ORDERED.
DATED: December 4, 2015.
UNITED STATES DISTRICT JUDGE
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