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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 GWENDOLYN SMITH, Plaintiff, 8 9 JOHN DOES 1-10 d/b/a, et al., ORDER DENYING MOTION TO RECONSIDER/VACATE JUDGMENT 11 For the Northern District of California United States District Court 10 v. No. C 10-0996 PJH 12 13 Defendant(s). _______________________________/ The court is in receipt of plaintiff’s motion to reconsider/vacate the judgment 14 previously entered by the court on December 13, 2011. Plaintiff requests that the court 15 reconsider its decision to dismiss plaintiff’s complaint, without prejudice, for failure to effect 16 service of process. As grounds for her motion, plaintiff contends that she was not aware 17 that ineffective service of process would result in dismissal of her case; that dismissal for 18 failure to prosecute is not justified based upon delay here; and that dismissal for failure to 19 effect service of process was inappropriate, since alternative means were available to 20 serve defendants. 21 Plaintiff’s motion is unpersuasive. The court’s previous dismissal was not, as 22 plaintiff’s motion asserts, for failure to prosecute the instant action under Federal Rule of 23 Civil Procedure (“FRCP”) 41(b), but rather for failure to effect service of process pursuant 24 to FRCP 4(m). As has been documented by the court on prior occasions, plaintiff was 25 granted multiple extensions of time in which to serve defendants, over the course of nearly 26 one and a half years, and on June 2, 2011, after an order to show cause had issued, 27 plaintiff was granted a further and final extension of time in which to complete service of 28 process through specified options. While plaintiff did attempt to compete service of process 1 following the June OSC hearing, plaintiff’s summons was returned unexecuted on July 12, 2 2011. Yet, notwithstanding the clear failure of service in July 2011 (which plaintiff does not 3 dispute she had knowledge of), plaintiff took no further action to serve defendants, nor did 4 plaintiff request any relief from the court, until an additional nearly 6 months had passed, 5 and after the court finally issued its order dismissing the action – without prejudice – 6 pursuant to Rule 4(m). excusable neglect for her failure to effect service of process at any time prior to the court’s 9 dismissal, that defendants have received actual notice of the lawsuit, or that she has or will 10 experience severe prejudice as a result of dismissal. See, e.g., Boudette v. Barnette, 923 11 For the Northern District of California Moreover, plaintiff fails to adequately establish in her papers grounds demonstrating 8 United States District Court 7 F.2d 754, 755-56 (9th Cir. 1991). 12 A final opportunity means exactly that. Plaintiff’s motion is DENIED. 13 14 IT IS SO ORDERED. 15 Dated: January 24, 2012 ______________________________ PHYLLIS J. HAMILTON United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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