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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division CATHY ENWERE, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 Plaintiff, 13 v. 14 ORDER (1) TO SHOW CAUSE AND (2) EXTENDING TIME FOR SERVICE AMERICAN NATIONAL, et al., 15 No. C 13-01160 LB Defendants. _____________________________________/ 16 17 18 I. INTRODUCTION On March 14, 2013, Plaintiff Cathy Enwere filed a complaint against Defendants American 19 National Company of Insurance, Danielson Indemnity Insurance, Wells Fargo Dealer Services, 20 Kevin Grant, and Natasha Danielson (collectively, “Defendants”). Complaint, ECF No. 1.1 That 21 same day, Enwere filed an application to proceed in forma pauperis. Motion for Leave, ECF No. 3. 22 Several days later, the court approved Enwere’s application to proceed in forma pauperis. Order, 23 ECF No. 5. To date, Enwere has not consented to the jurisdiction of a United States magistrate 24 judge pursuant to 28 U.S.C. § 636(c) and has not served Defendants. See generally Docket. 25 On April 8, 2013, the court received a letter from Eileen McCarthy, a staff counselor at the 26 27 28 1 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page number at the top of the document. ORDER C 13-01160 LB 1 Women’s Recovery Association. ECF No. 9. Enwere also cosigned the letter. Id. It states that 2 Enwere is in residential drug recovery treatment and plans to remain there until at least June 20, 3 2013. Id. For that reason, she requests “an extension for her claim.” Id. Upon consideration of 4 Enwere’s request and a further review of her complaint, the court must address issues with subject- 5 matter jurisdiction and the time limit for service. 6 II. SUBJECT-MATTER JURISDICTION 7 It appears from Enwere’s complaint and Civil Cover Sheet that subject-matter jurisdiction 8 does not exist. See Complaint, ECF No. 1. The complaint appears to allege negligence against 9 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 11 understand. Id. 12 For the Northern District of California UNITED STATES DISTRICT COURT 10 On the Civil Cover Sheet, Enwere checked off a box, indicating that jurisdiction exists 13 pursuant to 28 U.S.C. § 1345 because the U.S. Government is a plaintiff in the suit. See Civil Cover 14 Sheet, ECF No. 1-1 at 1. This is not the case. Id. Enwere also indicated that she and Defendants 15 are citizens of the same state. Id. This would mean that there is no diversity jurisdiction under 28 16 U.S.C. § 1332. Enwere does not appear to cite any federal cause of action or plead any other basis 17 for federal jurisdiction. 18 Accordingly, Enwere is hereby ordered to show cause why this action should not be 19 dismissed for lack of subject-matter jurisdiction. Given Enwere’s plans to remain in residential 20 treatment until at least June 20, 2013, the court will give her sufficient time to complete her 21 program. Accordingly, Enwere SHALL file a response to this order no later than July 22, 2013. 22 III. SERVICE 23 This raises another problem. To date, Enwere has not served Defendants. See generally 24 Docket. Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant within 120 25 days after filing the complaint. The 120 days for service runs from the date of the original 26 complaint. See Fed. R. Civ. P. 4(m). A court may dismiss a case without prejudice if a plaintiff has 27 not complied with Rule 4(m) unless the plaintiff shows good cause for failing to serve a defendant. 28 Id. If good cause appears, the court must extend the time for service for an appropriate period. Id. ORDER C 13-01160 LB 2 1 Whether good cause exists is determined on a case by case basis. In re Sheehan, 253 F.3d 507, 512 2 (9th Cir. 2001). Good cause exists where the plaintiff has attempted to serve a defendant, was 3 confused about the requirements for service of process, or was prevented from serving a defendant 4 because of events outside of its control. See Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir. 5 1985); Mateo v. M/S KISO, 805 F. Supp. 792, 795 (N.D. Cal. 1992) (overruled on other grounds). 6 Good cause was found where the delay in service was attributable to serious illness of plaintiff’s 7 counsel and resulted in no prejudice to defendant. LeMaster v. City of Winnemucca, 113 F.R.D. 37, 8 38-39 (D. Nev. 1986). The court also has broad “discretion under Rule 4(m), absent a showing of 9 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 11 Cir.1995)). 12 For the Northern District of California UNITED STATES DISTRICT COURT 10 Enwere is a pro se litigant. The court finds that her enrollment in a residential drug 13 treatment program for at least 90 days is a serious medical complication that constitutes good cause. 14 Good cause appearing, the court EXTENDS the time for service by 30 days. Enwere shall file proof 15 of service by August 12, 2013. 16 CONCLUSION 17 For the reasons stated above, the court ORDERS Enwere to file a response to this order no 18 later than July 22, 2013 and EXTENDS the time limit for service until August 12, 2013. The Case 19 Management Conference is continued until September 19, 2013 at 11:00 a.m. in courtroom C, 15th 20 Floor, 450 Golden Gate Avenue, San Francisco, CA 94102. The parties shall file a joint case 21 management conference statement no later than September 12, 2013. 22 23 IT IS SO ORDERED. Dated: April 16, 2013 _______________________________ LAUREL BEELER United States Magistrate Judge 24 25 26 27 28 ORDER C 13-01160 LB 3

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