Smith v. City of Berkeley et al

Filing 10

ORDER APPROVING SUBSTITUTION OF COUNSEL AND GRANTING EXTENSION OF TIME FOR SERVICE. Signed by Magistrate Judge Jacqueline Scott Corley on 2/25/2016(ahmS, COURT STAFF) (Filed on 2/25/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JIMMY SMITH,
Plaintiff,

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v.
CITY OF BERKELEY, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 15-cv-05197-JSC
ORDER APPROVING SUBSTITUTION
OF COUNSEL AND GRANTING
EXTENSION OF TIME FOR SERVICE
Re: Dkt. No. 9

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Plaintiff Jimmy Smith (“Plaintiff”) brings this civil action against the City of Berkeley.

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The Court previously granted Plaintiff’s Application to Proceed In Forma Pauperis (“IFP”). (Dkt.

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No. 4.) At that time, the Court also evaluated Plaintiff’s complaint under 28 U.S.C. § 1915(e)(2)

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and found it sufficient to proceed to service by the U.S. Marshal. (Id.) After Plaintiff, then

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proceeding pro se, failed to respond to the Clerk’s Office request for an address for one of the

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defendants and failed to appear at the case management conference or submit a statement as

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required, the Court ordered Plaintiff to show cause why this action should not be dismissed

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pursuant to Federal Rule of Civil Procedure 41(b). (Dkt. No. 8.)

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Plaintiff has filed a timely response to the show cause order. (Dkt. No. 9.) Though it

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offers no explanation for Plaintiff’s prior failures to comply with the Clerk’s Office’s requests or

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the Court’s orders, the response is a request for substitution of counsel and for a 90-day

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continuance to amend and serve the complaint. (Id.) Having considered Plaintiff’s response, the

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Court excuses Plaintiff’s prior lapses, which appeared to have occurred while he was in the

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process of retaining counsel to represent him in this matter. The substitution of counsel is

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approved.

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With respect to the request for an extension of time to amend and serve the complaint,

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Plaintiff need not seek leave to amend at this time, as he may do so as of right. See Fed. R. Civ. P.

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15(a)(1). However, any amended complaint will be subject to renewed Section 1915 review

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before proceeding to service. As for the timing of service, the new Federal Rule of Civil

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Procedure 4(m) shortened the time to serve the complaint to 90 days. See Fed. R. Civ. P. 4(m);

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see also Advisory Comm. Notes to 2015 Amendment to Rule 4(m) (“The presumptive time for

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serving a defendant is reduced from 120 days to 90 days. This change . . . will reduce delay at the

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beginning of litigation.”). That deadline has passed. However, in light of the new substitution of

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counsel and because the U.S. Marshal is to serve the complaint given Plaintiff’s IFP status, see

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Advisory Comm. Notes to 2015 Amendment to Rule 4(m) (“More time may be needed [for
service], for example, when . . . a marshal is to make service in an in forma pauperis action.”), the

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United States District Court
Northern District of California

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Court finds good cause to extend the time for service for 90 days, or until May 25, 2016.

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IT IS SO ORDERED.
Dated: February 25, 2016

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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