Cato v. Community Job Program et al

Filing 13

ORDER TO SERVE SUMMONS AND COMPLAINT UPON DEFENDANTS. Signed by Judge Beeler on 2/27/2012. (lblc1, COURT STAFF) (Filed on 2/27/2012)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 Oakland Division MARK CATO, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 No. C 11-05156 LB Plaintiff, v. ORDER TO SERVE SUMMONS AND COMPLAINT UPON DEFENDANTS 13 COMMUNITY JOB PROGRAM, et al., 14 15 16 Defendants. _____________________________________/ On October 20, 2011, pro se Plaintiff Mark Cato filed a Complaint against Defendants1 17 Community Job Program and S.F. Private Industry Council for violation of federal law in relation to 18 his employment. Complaint, ECF No. 1.2 The Court granted Plaintiff’s Application to Proceed In 19 Forma Pauperis on December 2, 2011, and ordered the U.S. Marshal to serve Defendants with the 20 summons. 12/2/11 Order, ECF No. 6 at 1. On December 19, 2011, the U.S. Marshal executed the 21 Summons at the address indicated by Plaintiff. Acknowledgment of Service, ECF No. 8 at 3. 22 In response to the Summons, non-party Goodwill Industries of San Francisco, San Mateo and 23 Marin Counties, Inc. (“Goodwill”) filed a Motion to Dismiss Plaintiff’s Complaint on January 10, 24 25 26 27 28 1 The Complaint caption lists the defendant(s) as “Community Job Program / S.F. Private Industry Council.” The Court is unable to tell whether the Plaintiff is naming two defendants, a single defendant with a compound name, or listing multiple names for a single defendant. For purposes of this Order, the Court will assume that there are multiple defendants. 2 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page number at the top of the document, not the pages at the bottom. C 11-05156 LB ORDER 1 2012. Motion to Dismiss, ECF No. 9.3 Goodwill explains that it mistakenly accepted service of the 2 Summons, which was incorrectly addressed to Goodwill’s corporate headquarters. Mem. of P. & A., 3 ECF No. 9-1 at 2. According to Goodwill, neither of the named defendants is located at that 4 address. Id. at 1. Plaintiff did file not file an opposition or submit any files in response to the 5 motion. Accordingly, this Court accepts Goodwill’s assertion that neither Defendant was served at 6 Goodwill’s corporate headquarters and finds that the December 19, 2011 service was defective as to 7 both defendants. 8 A plaintiff bears the burden of ensuring that the summons and complaint are properly served. Marshal with sufficient information to serve a defendant. See Walker v. Sumner, 14 F.3d 1415, 11 1421-22 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). 12 For the Northern District of California Fed. R. Civ. P. 4(c)(1). Further, a plaintiff proceeding in forma pauperis must provide the U.S. 10 UNITED STATES DISTRICT COURT 9 Accordingly, Mr. Cato must provide the U.S. Marshal with the correct address information for each 13 Defendant. 14 Mr. Cato, however, has missed the deadline for serving the Defendants. A plaintiff must serve 15 the defendant within 120 days after it files the complaint. Fed. R. Civ. P. 4(m). Where the plaintiff 16 does not comply with this provision, a court must dismiss a case without prejudice unless the 17 plaintiff shows good cause for its failure to serve a defendant. Id. If good cause appears, the court 18 must extend the time for service for an appropriate period. Id. Even without good cause, “[c]ourts 19 have discretion under Rule 4(m) . . . to extend the time for service.” In re Sheehan, 253 F.3d 507, 20 513 (9th Cir. 2001). “Courts must apply considerable leeway when assessing whether a pro se civil 21 rights litigant’s failure to comply strictly with time limits . . . should be excused for good cause.” 22 McGuckin v. Smith, 974 F.2d 1050, 1058 (9th Cir. 1992). Courts have found that delays in service 23 attributable to the marshal or court clerk “automatically constitute ‘good cause’ preventing dismissal 24 under Rule 4(m).” Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995); Puett v. Blandford, 912 25 F.2d 270, 275 (9th Cir. 1990) (“[A] plaintiff should not be penalized by having his or her action 26 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform 27 28 3 Goodwill’s Motion to Dismiss is separately disposed of at ECF No. 12. C 11-05156 LB ORDER 2 1 2 the duties required of each of them.”). Plaintiff filed the Complaint on October 20, 2011. Complaint, ECF No. 1. Thus, the 120-day 3 service deadline under Rule 4(m) expired on February 17, 2012. However, the Court did not grant 4 Plaintiff’s Application to Proceed In Forma Pauperis until 6 weeks after the Application was filed. 5 12/02/2011 Order, ECF No. 6. Plaintiff attempted to serve the Defendants on December 19, 2011. 6 Acknowledgement of Service, ECF No. 8. Given these factors and the policy of applying 7 considerable leeway to a pro se civil rights litigant when considering a Rule 4(m) time limit 8 extension, the court will extend the deadline for Plaintiff to serve the Defendants. 9 Accordingly, the Court hereby ORDERS Plaintiff to file proof that he has served each 2012. Once Plaintiff provides the clerk with the correct address information for the Defendants, the 12 For the Northern District of California Defendant or provide the clerk with an accurate service address for each Defendant by March 16, 11 UNITED STATES DISTRICT COURT 10 clerk shall reissue summons and the U.S. Marshal shall serve a copy of the Complaint, any 13 amendments or attachments, and this Order upon Defendants. If Plaintiff cannot complete service 14 by March 16, 2012, he may move for an extension of time. The Court will only grant an extension if 15 Plaintiff demonstrates good cause for his failure to serve the Defendants. See Fed. R. Civ. P. 4(m). 16 Failure to comply with the terms of this Order will result in dismissal without prejudice. 17 18 IT IS SO ORDERED. Dated: February 27, 2012 _______________________________ LAUREL BEELER United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 C 11-05156 LB ORDER 3

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