Bhandal v. Bank of America, N.A. et al

Filing 7

ORDER DISMISSING CASE. Signed by Magistrate Judge Laurel Beeler on 11/21/2012. (lblc2, COURT STAFF) (Filed on 11/21/2012)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division RISHI BHANDAL, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 No. C 12-2140 LB Plaintiff, ORDER DISMISSING CASE v. 13 BANK OF AMERICA, N.A., ET AL., 14 15 Defendants. _____________________________________/ 16 I. FACTS 17 Plaintiff filed this lawsuit on April 30, 2012, and consented to the undersigned's jurisdiction on 18 July 19, 2012. See ECF Nos. 1, 5. On August 28, 2012, the court issued an order noting that 19 Federal Rule of Civil Procedure 4(m)'s 120-day time period to serve Defendants expired on August 20 28, 2012 and directing Plaintiff to serve the Defendants and file proof of service by September 14, 21 2012 or else risk dismissal of his case. Order, ECF No. 6. 22 Mr. Levy has not responded to the court’s order. See generally Docket. 23 II. LEGAL STANDARD 24 Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant within 120 days 25 after it files the complaint. The 120 days for service runs from the date of the original complaint. 26 See Fed. R. Civ. P. 4(m). A court may dismiss a case without prejudice if a plaintiff has not 27 complied with Rule 4(m) unless the plaintiff shows good cause for its failure to serve a defendant. 28 Id. If good cause appears, the court must extend the time for service for an appropriate period. Id. Whether good cause exists is determined on a case by case basis. In re Sheehan, 253 F.3d 507, 512 ORDER (C 12-1240 LB) 1 (9th Cir. 2001). A plaintiff may show good cause where it attempted to serve a defendant but has 2 not yet completed it, was confused about the requirements for service of process, or was prevented 3 from serving a defendant because of events outside of its control. See Wei v State of Hawaii, 763 4 F.2d 370, 372 (9th Cir. 1985) (applying the good cause standard in Rule 4(j) which was replaced by 5 Rule 4(m) in 1993); Mateo v. M/S KISO, 805 F.Supp. 792, 795 (N.D. Cal. 1992) (overturned on 6 other grounds). Evasion of service could also constitute good cause for delay in service. Id. at 371; 7 Intrade Industries, Inc. v. Foreign Cargo Mgmt. Corp., No. 1:07-CV-1893 AWI GSA, 2008 WL 8 5397495, at *1 (E.D. Cal. Dec. 24, 2008) (citing Hendry v. Schneider, 116 F.3d 446, 449 (10th Cir. 9 1997)). 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 III. DISCUSSION A. Whether Plaintiff Can Demonstrate Good Cause Plaintiff has not responded to the court’s order to show cause. Accordingly, he has not 13 demonstrated good cause. Additionally, the court does not find that Plaintiff will be unduly 14 prejudiced by a dismissal without prejudice. He has had ample opportunity to provide the Clerk of 15 the Court with an address at which to serve Mass Mutual, such that the court likely could dismiss his 16 claims for failure to prosecute under Rule 41(b), which would preclude any future suit. Given the 17 court’s lenient approach to Plaintiff's inexcusable silence and delay, any prejudice is solely 18 attributable to his actions. 19 B. Whether this Court Can Dismiss the Case 20 Plaintiff has consented to this court’s jurisdiction. Consent (Plaintiff), ECF No. 5. The court 21 does not require the consent of the Mass Mutual to dismiss an action when it has not been served 22 and therefore is not a party under 28 U.S.C. § 636(c). Ornelas v. De Frantz, C 00-1067 JCS, 2000 23 WL 973684, at *2 n.2 (N.D. Cal. June 29, 2000) (citing Neals v. Norwood, 59 F.3d 530, 532 (5th 24 Cir. 1995)); cf. United States v. Real Property, 135 F. 3d 1312, 1316 (9th Cir. 1997) (holding that 25 the consent of an individual who was not a party was not a precondition to the magistrate judge’s 26 jurisdiction). Accordingly, the court can dismiss Plaintiff's case. 27 IV. CONCLUSION 28 For the reasons stated above, the court DISMISSES this case without prejudice. The Clerk of the Court is directed to close the file. ORDER (C 12-1240 LB) 2 1 IT IS SO ORDERED. 2 Dated: November 21, 2012 LAUREL BEELER United States Magistrate Judge 3 4 5 6 7 8 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER (C 12-1240 LB) 3

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