Enwere v. American National Company of Insurance et al

Filing 10

ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR LACK OF SUBJECT-MATTER JURISDICTION. Show Cause Response due by 7/22/2013. Plaintiffs deadline for service is extended until August 12, 2013. Case Management Statement due by 9/12/2013. Case Management Conference set for 9/19/2013 11:00 AM in Courtroom C, 15th Floor, San Francisco. Signed by Judge Laurel Beeler on 4/16/2013. (lblc1, COURT STAFF) (Filed on 4/16/2013)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
CATHY ENWERE,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Plaintiff,

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v.

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ORDER (1) TO SHOW CAUSE
AND (2) EXTENDING TIME FOR
SERVICE

AMERICAN NATIONAL, et al.,

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No. C 13-01160 LB

Defendants.
_____________________________________/

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I. INTRODUCTION
On March 14, 2013, Plaintiff Cathy Enwere filed a complaint against Defendants American

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National Company of Insurance, Danielson Indemnity Insurance, Wells Fargo Dealer Services,

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Kevin Grant, and Natasha Danielson (collectively, “Defendants”). Complaint, ECF No. 1.1 That

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same day, Enwere filed an application to proceed in forma pauperis. Motion for Leave, ECF No. 3.

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Several days later, the court approved Enwere’s application to proceed in forma pauperis. Order,

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ECF No. 5. To date, Enwere has not consented to the jurisdiction of a United States magistrate

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judge pursuant to 28 U.S.C. § 636(c) and has not served Defendants. See generally Docket.

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On April 8, 2013, the court received a letter from Eileen McCarthy, a staff counselor at the

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page
number at the top of the document.
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Women’s Recovery Association. ECF No. 9. Enwere also cosigned the letter. Id. It states that

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Enwere is in residential drug recovery treatment and plans to remain there until at least June 20,

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2013. Id. For that reason, she requests “an extension for her claim.” Id. Upon consideration of

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Enwere’s request and a further review of her complaint, the court must address issues with subject-

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matter jurisdiction and the time limit for service.

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II. SUBJECT-MATTER JURISDICTION

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It appears from Enwere’s complaint and Civil Cover Sheet that subject-matter jurisdiction

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does not exist. See Complaint, ECF No. 1. The complaint appears to allege negligence against

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Defendants but it is not completely clear to the court. Id. Enwere named the complaint “Issuance
Theft Illegal Repossession.” Id. The handwritten complaint is illegible and difficult for the court to

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understand. Id.

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For the Northern District of California

UNITED STATES DISTRICT COURT

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On the Civil Cover Sheet, Enwere checked off a box, indicating that jurisdiction exists

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pursuant to 28 U.S.C. § 1345 because the U.S. Government is a plaintiff in the suit. See Civil Cover

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Sheet, ECF No. 1-1 at 1. This is not the case. Id. Enwere also indicated that she and Defendants

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are citizens of the same state. Id. This would mean that there is no diversity jurisdiction under 28

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U.S.C. § 1332. Enwere does not appear to cite any federal cause of action or plead any other basis

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for federal jurisdiction.

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Accordingly, Enwere is hereby ordered to show cause why this action should not be

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dismissed for lack of subject-matter jurisdiction. Given Enwere’s plans to remain in residential

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treatment until at least June 20, 2013, the court will give her sufficient time to complete her

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program. Accordingly, Enwere SHALL file a response to this order no later than July 22, 2013.

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III. SERVICE

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This raises another problem. To date, Enwere has not served Defendants. See generally

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

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

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complaint. See Fed. R. Civ. P. 4(m). A court may dismiss a case without prejudice if a plaintiff has

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not complied with Rule 4(m) unless the plaintiff shows good cause for failing 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

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(9th Cir. 2001). Good cause exists where the plaintiff has attempted to serve a defendant, was

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confused about the requirements for service of process, or was prevented from serving a defendant

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because of events outside of its control. See Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir.

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1985); Mateo v. M/S KISO, 805 F. Supp. 792, 795 (N.D. Cal. 1992) (overruled on other grounds).

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Good cause was found where the delay in service was attributable to serious illness of plaintiff’s

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counsel and resulted in no prejudice to defendant. LeMaster v. City of Winnemucca, 113 F.R.D. 37,

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38-39 (D. Nev. 1986). The court also has broad “discretion under Rule 4(m), absent a showing of

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good cause, to extend the time of service or to dismiss the action without prejudice.” In re Sheehan,
253 F.3d at 513 (citing Petrucelli v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1305 (3d

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Cir.1995)).

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Enwere is a pro se litigant. The court finds that her enrollment in a residential drug

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treatment program for at least 90 days is a serious medical complication that constitutes good cause.

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Good cause appearing, the court EXTENDS the time for service by 30 days. Enwere shall file proof

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of service by August 12, 2013.

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CONCLUSION

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For the reasons stated above, the court ORDERS Enwere to file a response to this order no

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later than July 22, 2013 and EXTENDS the time limit for service until August 12, 2013. The Case

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Management Conference is continued until September 19, 2013 at 11:00 a.m. in courtroom C, 15th

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Floor, 450 Golden Gate Avenue, San Francisco, CA 94102. The parties shall file a joint case

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management conference statement no later than September 12, 2013.

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IT IS SO ORDERED.
Dated: April 16, 2013
_______________________________
LAUREL BEELER
United States Magistrate Judge

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