Brooke v. Arkesh Ventures, Inc.

Filing 20

ORDER TO SHOW CAUSE with a show-cause response due by 3/30/2017. Arkesh Ventures remains a named defendant in the amended complaint, but the docket does not reflect service on it. It may be that only Big Eddy Ventures is the intended defendant at this point. The attached order asks the plaintiff to serve Arcade Ventures and file proof of service (or establish good cause for not serving it) or, alternatively, to dismiss Arkesh Ventures if it is not a named defendant anymore. The order sets a deadline of 3/30/2017. (Beeler, Laurel) (Filed on 3/18/2017)

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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 United States District Court Northern District of California 11 12 THERESA BROOKE, Plaintiff, 13 14 15 16 17 Case No. 16-cv-06749-LB ORDER TO SHOW CAUSE RE: FAILURE TO PROSECUTE v. ARKESH VENTURES, INC., et al., Defendants. On November 22, 2016, the plaintiff filed a complaint under the Americans with Disabilities 18 Act, naming as the defendant Arkesh Ventures doing business as the hotel called the Purple 19 Orchid Wine Country Resort and Spa, located at 4549 Cross Road, Livermore, California. 20 (Compl. – ECF No. 1.) The allegation is that Arkesh Ventures owns, operates, and does business 21 as the hotel. (Id. ¶ 2.) The summons issued to Arkesh Ventures c/o Steven Wang at 2426 2nd 22 Street, Livermore, California. (ECF Nos. 1-2 and 4.) Thereafter, the plaintiff filed an amended 23 complaint that retained Arkesh Ventures as a defendant in the same capacity, that is, as the owner 24 and operator of the Purple Orchid. (Amended Compl. – ECF No. 13, ¶ 2.) The amended complaint 25 added the defendant Big Eddy Ventures, specifying that it too owned, operated, and did business 26 as the Purple Orchid. (Id. ¶ 3.) The summons issued to Big Eddy Ventures at the hotel’s address at 27 28 4549 Cross Road. (ECF No. 14.) Thereafter, Big Eddy Ventures appeared and answered the amended complaint. (Answer – ECF No. 17.) The plaintiff and Big Eddy Ventures consented to ORDER — No. 16-cv-06749-LB  1 2 the undersigned’s jurisdiction. (ECF Nos. 16 and 19.) The issue is the role of Arkesh Ventures. Given that both Arkesh Ventures and Big Eddy 3 Ventures are named as the owners and operators of the Purple Orchid, it may be that only Big 4 Eddy Ventures is the intended defendant. But the summons on the original complaint issued to 5 Arkesh Ventures, and while the plaintiff did not request a summons for Arkesh Ventures in the 6 amended complaint, it remains a named defendant. No proof of service was filed. (See generally 7 Docket.) 8 Under Federal Rule of Civil Procedure 4(m), a plaintiff normally has 90 days from the filing of 9 the complaint to serve the complaint and summons on a defendant. This means that in this case the 10 United States District Court Northern District of California 11 12 13 14 15 16 17 plaintiff had until February 20, 2017, to serve Arkesh Ventures. See Fed. R. Civ. P. 4(m) & Fed. R. Civ. P. 6(a)(1)(C). This deadline is not altered by the plaintiff’s amended complaint that added Big Eddy Ventures as a new defendant. (First Amended Compl., ECF No. 13.) See Thai v. United States, No. 15cv583 WQH (NLS), 2016 WL 1585135, at *2 (S.D. Cal. Mar. 15, 2016) (“[T]he filing of an amended complaint does not restart the service period against a defendant named in the original complaint under Rule 4(m).”); Rudolph v. UT Starcom, Inc., No. C 07-04578 SI, 2009 WL 248370, at *2 (N.D. Cal. Feb 2, 2009). There are several possibilities. One, Arkesh Ventures is a defendant, and the plaintiff needs to serve it. If this is the case, the 18 court orders the plaintiff to serve Arkesh Ventures by March 24, 2017, and to file proof of service 19 by March 30 (or show good cause by that date for the failure to serve). If the plaintiff does not do 20 either of these, the court will dismiss Arkesh Ventures without prejudice under Rule 4(m) for 21 22 23 24 25 failure to prosecute. Two, if Arkesh Ventures is not the defendant (essentially because Big Eddy Ventures is), the plaintiff can dismiss the case against Arkesh Ventures, again by March 30. Three, a non-appearing defendant implicates issues of the court’s jurisdiction. For example, the court generally cannot rule on substantive motions that affect a named defendant who has not 26 appeared. But if the parties stipulate to sever the claims against the non-appearing (but properly 27 served) defendant, the court can retain jurisdiction over the original case, which moves forward 28 against the served parties. The severed case is assigned a new case number and remains assigned ORDER — No. 16-cv-06749-LB 2 

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