Patrick Collins, Inc. v. Does 1-3757

Filing 11

ORDER TO SHOW CAUSE. Signed by Judge Beeler on 5/10/2011. (lblc1, COURT STAFF) (Filed on 5/10/2011)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 Oakland Division PATRICK COLLINS INC, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 Plaintiff, No. C 10-05886 LB ORDER TO SHOW CAUSE v. 13 DOES 1-3757, 14 15 Defendants. _____________________________________/ 16 Plaintiff Patrick Collins, Inc. filed its complaint on December 27, 2010. ECF No. 1.1 Rule 4(m) 17 of the Federal Rules of Civil Procedure requires a plaintiff to serve a defendant within 120 days after 18 it files the complaint. A court must dismiss a case without prejudice if a plaintiff has not complied 19 with this provision unless the plaintiff shows good cause for its failure to serve a defendant. Fed. R. 20 Civ. P. 4(m). If good cause appears, the court must extend the time for service for an appropriate 21 period. Id. 22 Whether good cause exists is determined on a case by case basis. In re Sheehan, 253 F.3d 507, 23 512 (9th Cir. 2001). A plaintiff may show good cause where it attempted to serve a defendant but not 24 yet completed it, was confused about the requirements for service of process, or was prevented from 25 serving a defendant because of events outside of its control. See Wei v. State of Hawaii, 763 F.2d 26 370, 372 (9th Cir. 1985) (applying the good cause standard in Rule 4(j) which was replaced by Rule 27 28 1 Citations are to the clerk’s electronic case file (ECF) with pin cites to the electronic page numbers at the top (as opposed to the bottom) of the page. C 10-05886 LB ORDER TO SHOW CAUSE 1 4(m) in 1993); Mateo v. M/S KISO, 805 F. Supp. 792, 795 (N.D. Cal. 1992) (overturned on other 2 grounds). Evasion of service could also constitute good cause for delay in service. Id. at 371; 3 Intrade Industries, Inc. v. Foreign Cargo Mgmt. Corp., No. 1:07-CV-1893 AWI GSA, 2008 WL 4 5397495, at *1 (E.D. Cal. Dec. 24, 2008) (citing Hendry v. Schneider, 116 F.3d 446, 449 (10th Cir. 5 1997)). 6 On April 13, 2011, Plaintiff filed an ex parte application for leave to take limited discovery prior 7 to a Rule 26 conference. ECF No. 8. The ex parte application seeks permission to serve subpoenas 8 on certain Internet Service Providers to obtain information identifying the Doe Defendants so that 9 Plaintiff can complete service of process on them. Id. The proposed order gives the Internet Service Based on this time line, even if the court had ruled on the motion immediately and Plaintiff served 12 For the Northern District of California Providers and subscribers each 30 days in which to object to the subpoenas. ECF No. 8-3 at 2. 11 UNITED STATES DISTRICT COURT 10 the subpoenas that same day, Plaintiff would not be expected to file proof of service until June 12, 13 2011. And – by Plaintiff’s own admission – this scenario is unlikely given that, in its request for an 14 order vacating the case management conference, Plaintiff stated that some Internet Service Providers 15 cannot quickly produce the requested information. ECF No. 9 at 2. 16 Rule 4(m) requires Plaintiff to have filed proof of service by April 26, 2011. Plaintiff did not. 17 Accordingly, the court ORDERS Plaintiff to show cause why this action should not be dismissed for 18 failure to serve the defendants as required by Rule 4(m) by May 23, 2011. 19 20 IT IS SO ORDERED. Dated: May 10, 2011 _______________________________ LAUREL BEELER United States Magistrate Judge 21 22 23 24 25 26 27 28 C 10-05886 LB ORDER TO SHOW CAUSE 2

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