Smith v. Does

Filing 56

ORDER by Judge Hamilton Denying 55 Motion to Reconsider/Vacate Judgment (pjhlc2, COURT STAFF) (Filed on 1/24/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GWENDOLYN SMITH,
Plaintiff,

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JOHN DOES 1-10 d/b/a
Straighttalknews.org, et al.,

ORDER DENYING MOTION
TO RECONSIDER/VACATE
JUDGMENT

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For the Northern District of California

United States District Court

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v.

No. C 10-0996 PJH

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Defendant(s).
_______________________________/
The court is in receipt of plaintiff’s motion to reconsider/vacate the judgment

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previously entered by the court on December 13, 2011. Plaintiff requests that the court

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reconsider its decision to dismiss plaintiff’s complaint, without prejudice, for failure to effect

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service of process. As grounds for her motion, plaintiff contends that she was not aware

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that ineffective service of process would result in dismissal of her case; that dismissal for

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failure to prosecute is not justified based upon delay here; and that dismissal for failure to

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effect service of process was inappropriate, since alternative means were available to

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serve defendants.

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Plaintiff’s motion is unpersuasive. The court’s previous dismissal was not, as

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plaintiff’s motion asserts, for failure to prosecute the instant action under Federal Rule of

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Civil Procedure (“FRCP”) 41(b), but rather for failure to effect service of process pursuant

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to FRCP 4(m). As has been documented by the court on prior occasions, plaintiff was

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granted multiple extensions of time in which to serve defendants, over the course of nearly

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one and a half years, and on June 2, 2011, after an order to show cause had issued,

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plaintiff was granted a further and final extension of time in which to complete service of

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process through specified options. While plaintiff did attempt to compete service of process

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following the June OSC hearing, plaintiff’s summons was returned unexecuted on July 12,

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2011. Yet, notwithstanding the clear failure of service in July 2011 (which plaintiff does not

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dispute she had knowledge of), plaintiff took no further action to serve defendants, nor did

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plaintiff request any relief from the court, until an additional nearly 6 months had passed,

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and after the court finally issued its order dismissing the action – without prejudice –

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pursuant to Rule 4(m).

excusable neglect for her failure to effect service of process at any time prior to the court’s

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dismissal, that defendants have received actual notice of the lawsuit, or that she has or will

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experience severe prejudice as a result of dismissal. See, e.g., Boudette v. Barnette, 923

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For the Northern District of California

Moreover, plaintiff fails to adequately establish in her papers grounds demonstrating

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United States District Court

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F.2d 754, 755-56 (9th Cir. 1991).

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A final opportunity means exactly that. Plaintiff’s motion is DENIED.

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IT IS SO ORDERED.

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Dated: January 24, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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