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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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
RISHI BHANDAL,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 12-2140 LB
Plaintiff,

ORDER DISMISSING CASE

v.
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BANK OF AMERICA, N.A., ET AL.,
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Defendants.
_____________________________________/

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I. FACTS

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Plaintiff filed this lawsuit on April 30, 2012, and consented to the undersigned's jurisdiction on

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July 19, 2012. See ECF Nos. 1, 5. On August 28, 2012, the court issued an order noting that

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Federal Rule of Civil Procedure 4(m)'s 120-day time period to serve Defendants expired on August

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28, 2012 and directing Plaintiff to serve the Defendants and file proof of service by September 14,

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2012 or else risk dismissal of his case. Order, ECF No. 6.

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Mr. Levy has not responded to the court’s order. See generally Docket.

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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.
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)

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

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

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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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For the Northern District of California

UNITED STATES DISTRICT COURT

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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

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demonstrated good cause. Additionally, the court does not find that Plaintiff will be unduly

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prejudiced by a dismissal without prejudice. He has had ample opportunity to provide the Clerk of

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the Court with an address at which to serve Mass Mutual, such that the court likely could dismiss his

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claims for failure to prosecute under Rule 41(b), which would preclude any future suit. Given the

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court’s lenient approach to Plaintiff's inexcusable silence and delay, any prejudice is solely

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attributable to his actions.

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B. Whether this Court Can Dismiss the Case

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Plaintiff has consented to this court’s jurisdiction. Consent (Plaintiff), ECF No. 5. The court

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does not require the consent of the Mass Mutual to dismiss an action when it has not been served

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and therefore is not a party under 28 U.S.C. § 636(c). Ornelas v. De Frantz, C 00-1067 JCS, 2000

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

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

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

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jurisdiction). Accordingly, the court can dismiss Plaintiff's case.

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IV. CONCLUSION

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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)

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IT IS SO ORDERED.

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Dated: November 21, 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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ORDER (C 12-1240 LB)

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