Yepez et al v. Jasper Sea Palace, Inc. et al

Filing 21

STIPULATION AND ORDER re 19 TO EXTEND TIME TO SERVE SUJUAN LI (rslc2, COURT STAFF) (Filed on 5/8/2009)

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JAMES DAL BON # 157942 DAL BON & MARGAIN APC 28 North 1st Street Suite 210 San Jose, CA 95113 Tel [phone] Fax [phone] Attorneys for Plaintiffs

*E-Filed 5/8/09*

UNITED STATES DISTRICT COURT FOR DISTRICT OF NORTHERN CALIFORNIA MARIO YEPEZ, RAFAEL PEREZ AND ALFONSO GARCIA RIOS Plaintiffs, vs. JASPER SEA PALACE ET AL Defendants PLAINTIFFS HEREBY GIVE NOTICE THAT on June 17, 2009 at 9:30 am in courtroom 4 of the 5th Floor of the United States District Court at 280 South 1st Street in San Jose, CA 95113 Plaintiff will motion the court to extend the time to serve Defendant Sujuan Li. The motion is based upon this motion and the attached Memorandum of Points and Authorities. Case No.: 08 CV 04411

ORDER TO

NOTICE OF MOTION, EXTEND TIME TO SERVE SUJUAN LI AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

s/jdb JAMES DAL BON DAL BON & MARGAIN 28 North First Street #210 San Jose, CA 95113

1
Motion to Extend Time

08 CV 04411

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EXTENSION OF TIME TO SERVE SUJUAN LI STATEMENT OF FACTS Plaintiffs are all Spanish speaking restaurant workers living in Santa Clara County. Plaintiffs worked for the Defendants until August of 2008 when they left their jobs over pay

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issues. See Dec. James Dal Bon They filed a complaint against Defendants Sujuan Li, dba Grand Palace and Jasper Sea Palace Inc. dba Grand Palace on September 19, 2008. See Dec. James Dal Bon, Doc. 1 Yepez v. Jasper Sea Palace 08 CV 04411. On January 27, 2009 our process server served a person who he believed was Sujuan Li both on behalf of herself and Jasper Sea Palace. He served them at the Grand Palace Restaurant at 1628 Hostetter Road, San Jose, CA 95131 Docs. 8, 9. Yepez v. Jasper Sea Palace 08 CV 04411 On March 25, 2009 Plaintiff amended the complaint to include Lavender Investment Inc., Tamson LLC and Ve Ly Nguyen as Defendants. Doc. 14 Yepez v. Jasper Sea Palace 08 CV 04411 On April 6, 2009 Plaintiff's new process server went to the Grand Palace Restaurant. At that point the a Ms. Kim Nguyen informed him that Sujuan Li no longer worked at the Grand Palace. Ms. Nguyen gave him her business card. Dec. James Dal Bon Ex. 1 Business Card On this basis, Plaintiff believes that Sujuan Li has not been successfully served. On that same date the process server served Lavender Investment Inc. the amended complaint on its agent for service of process. Ms. Li is listed as the President and Secretary of Lavender Investment Inc. with the California State Bureau of Alcohol. See Dec. James Dal Bon, Ex. 2. Plaintiff respectfully requests an extension of time to serve Ms. Sujuan Li. The attorney for the Defendants Ve Ly Nguyen and Tamson LLC informed the plaintiff on May 5, 2009 they would not oppose the motion.

2
Motion to Extend Time

08 CV 04411

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Argument Rule 4(m) of the Federal Rules of Civil Procedure provides: "If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiffmust dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Rule 4(m) requires a district court to grant an extension of time to serve a defendant if the plaintiff shows good cause for the delay in service. Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir.2007); In re Sheehan, 253 F.3d 507, 512 (9th Cir.2001). The court must consider whether a plaintiff has shown good cause for the delay in service on a case-by-case basis. In re Sheehan, 253 F.3d at 512. In Boudette v. Barnette, 923 F.2d 754, 755 (9th Cir.1991), the court analyzed Rule 4(j) of the Federal Rules of Civil Procedure, the predecessor to Rule 4(m). The Ninth Circuit noted that, "[a]t a minimum, `good cause' means excusable neglect." Id. at 756. Further, to justify more time for service of a complaint based on "good cause," a "plaintiff may also be

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required to show the following: (a) the party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed." Id. See also Faaita v. Liang Slip Copy, 2008 WL 3833380 D. Hawaii. Absent prejudice to defendant or anyone else, or to the court itself, it "cannot be an abuse of discretion" to extend the time for service even after expiration of the 120­day per 4(m). Mann v. American Airlines (9th Cir. 2003) 324 F3d 1088, 1090. In this case there is good cause to extend the time to serve the complaint. The Defendant, Sujuan Li would not suffer any prejudice since discovery has not begun. Only eight

3
Motion to Extend Time

08 CV 04411

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months has passed since the complaint was filed. Ms Li also must have notice of the proceeding since Lavender Investment Inc. was served with the amended complaint on April 6, 2009. Ms Li is listed as the president and secretary of Lavender Investments with the California Bureau of Alcohol. As the president of one of the corporate owners, Ms. Li will be involved in the litigation anyway. Plaintiffs will suffer prejudice if Ms. Li is dismissed. According to Rule 4(m) the case must be dismissed without prejudice, the plaintiffs will file another case against her alone. The plaintiff will lose time and money on the second case. This will result in a waste of time and money on the part of the courts and all parties. For the forgoing reasons the plaintiff respectfully requests a 45 day extension from the date of the signed order to serve Sujuan Li.

May 8, 2009

Respectfully Submitted

s/jdb

James Dal Bon

Respectfully Submitted:

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Motion to Extend Time

08 CV 04411

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March 7, 2008

PROPOSED ORDER

IT is ordered that under Federal Rule of Civil Proc. § 4(m) the plaintiffs are granted an additional 45 days from today's date to serve Defendant Sujuan Li.

Dated:

5/8/09

_______________________ Honorable Magistrate Judge Richard Seeborg

5
Motion to Extend Time

08 CV 04411