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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UNITED STATES DISTRICT COURT

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Northern District of California

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Oakland Division
MARK CATO,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 11-05156 LB
Plaintiff,

v.

ORDER TO SERVE SUMMONS AND
COMPLAINT UPON DEFENDANTS

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COMMUNITY JOB PROGRAM, et al.,
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Defendants.
_____________________________________/
On October 20, 2011, pro se Plaintiff Mark Cato filed a Complaint against Defendants1

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Community Job Program and S.F. Private Industry Council for violation of federal law in relation to

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his employment. Complaint, ECF No. 1.2 The Court granted Plaintiff’s Application to Proceed In

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Forma Pauperis on December 2, 2011, and ordered the U.S. Marshal to serve Defendants with the

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summons. 12/2/11 Order, ECF No. 6 at 1. On December 19, 2011, the U.S. Marshal executed the

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Summons at the address indicated by Plaintiff. Acknowledgment of Service, ECF No. 8 at 3.

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In response to the Summons, non-party Goodwill Industries of San Francisco, San Mateo and

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Marin Counties, Inc. (“Goodwill”) filed a Motion to Dismiss Plaintiff’s Complaint on January 10,

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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.
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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

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2012. Motion to Dismiss, ECF No. 9.3 Goodwill explains that it mistakenly accepted service of the

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Summons, which was incorrectly addressed to Goodwill’s corporate headquarters. Mem. of P. & A.,

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ECF No. 9-1 at 2. According to Goodwill, neither of the named defendants is located at that

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address. Id. at 1. Plaintiff did file not file an opposition or submit any files in response to the

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motion. Accordingly, this Court accepts Goodwill’s assertion that neither Defendant was served at

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Goodwill’s corporate headquarters and finds that the December 19, 2011 service was defective as to

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both defendants.

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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,

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1421-22 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).

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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.

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UNITED STATES DISTRICT COURT

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Accordingly, Mr. Cato must provide the U.S. Marshal with the correct address information for each

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Defendant.

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Mr. Cato, however, has missed the deadline for serving the Defendants. A plaintiff must serve

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the defendant within 120 days after it files the complaint. Fed. R. Civ. P. 4(m). Where the plaintiff

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does not comply with this provision, a court must dismiss a case without prejudice unless the

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plaintiff shows good cause for its failure to serve a defendant. Id. If good cause appears, the court

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must extend the time for service for an appropriate period. Id. Even without good cause, “[c]ourts

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have discretion under Rule 4(m) . . . to extend the time for service.” In re Sheehan, 253 F.3d 507,

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513 (9th Cir. 2001). “Courts must apply considerable leeway when assessing whether a pro se civil

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rights litigant’s failure to comply strictly with time limits . . . should be excused for good cause.”

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McGuckin v. Smith, 974 F.2d 1050, 1058 (9th Cir. 1992). Courts have found that delays in service

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attributable to the marshal or court clerk “automatically constitute ‘good cause’ preventing dismissal

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under Rule 4(m).” Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995); Puett v. Blandford, 912

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F.2d 270, 275 (9th Cir. 1990) (“[A] plaintiff should not be penalized by having his or her action

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dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to perform

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Goodwill’s Motion to Dismiss is separately disposed of at ECF No. 12.

C 11-05156 LB
ORDER

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the duties required of each of them.”).
Plaintiff filed the Complaint on October 20, 2011. Complaint, ECF No. 1. Thus, the 120-day

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service deadline under Rule 4(m) expired on February 17, 2012. However, the Court did not grant

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Plaintiff’s Application to Proceed In Forma Pauperis until 6 weeks after the Application was filed.

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12/02/2011 Order, ECF No. 6. Plaintiff attempted to serve the Defendants on December 19, 2011.

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Acknowledgement of Service, ECF No. 8. Given these factors and the policy of applying

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considerable leeway to a pro se civil rights litigant when considering a Rule 4(m) time limit

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extension, the court will extend the deadline for Plaintiff to serve the Defendants.

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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

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For the Northern District of California

Defendant or provide the clerk with an accurate service address for each Defendant by March 16,

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UNITED STATES DISTRICT COURT

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clerk shall reissue summons and the U.S. Marshal shall serve a copy of the Complaint, any

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amendments or attachments, and this Order upon Defendants. If Plaintiff cannot complete service

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by March 16, 2012, he may move for an extension of time. The Court will only grant an extension if

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Plaintiff demonstrates good cause for his failure to serve the Defendants. See Fed. R. Civ. P. 4(m).

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Failure to comply with the terms of this Order will result in dismissal without prejudice.

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IT IS SO ORDERED.
Dated: February 27, 2012
_______________________________
LAUREL BEELER
United States Magistrate Judge

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C 11-05156 LB
ORDER

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