Evans v. Western Sierra Acceptance

Filing 12

ORDER DISMISSING CASE. Signed by Magistrate Judge Laurel Beeler on 12/17/2012. (Attachments: # 1 Certificate/Proof of Service)(ls, COURT STAFF) (Filed on 12/17/2012)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
MILTON EVANS,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 11-01520 LB
Plaintiff,

ORDER DISMISSING CASE

v.
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WESTERN SIERRA ACCEPTANCE,
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Defendant.
_____________________________________/

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I. BACKGROUND
Plaintiff Milton Evans filed a complaint and a motion for leave to proceed in forma pauperis on

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March 29, 2011. See Complaint, ECF No. 1; Motion, ECF No. 2.1 After Evans consented to

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proceed before a U.S. Magistrate Judge, ECF No. 5, the court granted his motion for leave to

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proceed in forma pauperis on August 4, 2011, ECF No. 6.

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On August 29, 2011, the Clerk issued a notice requesting a service address for the Defendant.

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ECF No. 8. Evans did not respond to the Clerk’s Notice. On September 13, 2012, the court ordered

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Evans to show cause why this case should not be dismissed for failure to prosecute. ECF No. 11.

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The order to show cause warned Evans that the court might dismiss the case without further notice if

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he failed to provide the address at which the clerk can serve Defendant or otherwise explain why the

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court should not dismiss this action for failure to prosecute by October 1, 2012. Evans has not

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page numbers at the top of the document.
C 11-01520 LB (ORDER DISMISSING CASE)

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responded to the Court’s Order to Show Cause. Accordingly, and for the reasons discussed below,

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the court DISMISSES this case without prejudice.

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II. LEGAL STANDARD

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Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant within 120 days

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after it files the complaint. The 120 days for service runs from the date of the original complaint.

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See Fed. R. Civ. P. 4(m). A court may dismiss a case without prejudice if a plaintiff has not

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complied with Rule 4(m) unless the plaintiff shows good cause for its failure to serve a defendant.

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Id. If good cause appears, the court must extend the time for service for an appropriate period. Id.

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Whether good cause exists is determined on a case by case basis. In re Sheehan, 253 F.3d 507, 512

not yet completed it, was confused about the requirements for service of process, or was prevented

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For the Northern District of California

(9th Cir. 2001). A plaintiff may show good cause where it attempted to serve a defendant but has

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UNITED STATES DISTRICT COURT

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from serving a defendant because of events outside of its control. See Wei v State of Hawaii, 763

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F.2d 370, 372 (9th Cir. 1985) (applying the good cause standard in Rule 4(j) which was replaced by

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Rule 4(m) in 1993); Mateo v. M/S KISO, 805 F.Supp. 792, 795 (N.D. Cal. 1992) (overturned on

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other grounds). Evasion of service could also constitute good cause for delay in service. Id. at 371;

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Intrade Industries, Inc. v. Foreign Cargo Mgmt. Corp., No. 1:07-CV-1893 AWI GSA, 2008 WL

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5397495, at *1 (E.D. Cal. Dec. 24, 2008) (citing Hendry v. Schneider, 116 F.3d 446, 449 (10th Cir.

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1997)).

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III. DISCUSSION
A. Whether the Defendant Can Demonstrate Good Cause
Evans did not respond to the court’s order to show cause. Accordingly, he has not demonstrated

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good cause. Additionally, the court does not find that Plaintiff will be unduly prejudiced by a

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dismissal without prejudice. Plaintiff has had ample opportunity to serve defendants, such that the

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court likely could dismiss Plaintiff’s claims for failure to prosecute under Rule 41(b), which would

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preclude any future suit. Given the court’s lenient approach to Evans’s inexcusable silence and

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delay, any prejudice is solely attributable to Evans’s actions.

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B. Whether this Court Can Dismiss the Complaint

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Plaintiff has consented to this court’s jurisdiction. ECF No. 5. The court does not require the

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consent of the defendants to dismiss an action when the defendants have not been served and

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therefore are not parties under 28 U.S.C. § 636(c). Ornelas v. De Frantz, C 00-1067 JCS, 2000 WL

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973684, at *2 n.2 (N.D. Cal. June 29, 2000) (citing Neals v. Norwood, 59 F.3d 530, 532 (5th Cir.

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1995)); cf. United States v. Real Property, 135 F. 3d 1312, 1316 (9th Cir. 1997) (holding that the

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consent of an individual who was not a party was not a precondition to the magistrate judge’s

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jurisdiction).

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III. CONCLUSION
Thus, for the reasons stated above, the court DISMISSES this case without prejudice.

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IT IS SO ORDERED.

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Dated: December 17, 2012
_______________________________
LAUREL BEELER
United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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C 11-01520 LB (ORDER DISMISSING CASE)

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