Bolbol et al v. Feld Entertainment, Inc et al

Filing 108

ORDER GRANTING MOTION TO DISMISS UNSERVED DEFENDANTS by Judge Paul S. Grewal granting 91 Motion to Dismiss (psglc2, COURT STAFF) (Filed on 11/15/2012)

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1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN JOSE DIVISION 13 14 15 16 17 18 DENIZ BOLBOL and JOSEPH CUVIELLO, INDIVIDUALLY, ) ) ) Plaintiffs, ) v. ) ) FELD ENTERTAINMENT, INC. (dba ) RINGLING BROS. and BARNUM & BAILEY ) CIRCUS); JAMES DENNIS; MATTHEW ) GILLET; and DOES 1-10, ) ) Defendants. ) Case No.: C 11-5539 PSG ORDER GRANTING FELD ENTERTAINMENT’S MOTION TO DISMISS UNSERVED DEFENDANTS (Re: Docket No. 91) 19 Defendant Feld Entertainment Inc. (“Feld”) moves to dismiss Defendants James Dennis 20 (“Dennis”) and Matthew Gillet (“Gillet”) pursuant to Fed. R. Civ. P. 4(m) because Plaintiffs Deniz 21 Bolbol (“Bolbol”) and Joseph Cuviello (“Cuviello”) (collectively “Plaintiffs”) failed to serve 22 Dennis or Gillet. Pursuant to Civil L.R. 7-1(b), the motion was taken under submission. Having 23 considered the parties’ papers, the court GRANTS Feld’s motion. 24 The court has recounted the details of this case in other orders, 1 and so provides here only 25 the procedural history relevant to this motion. Plaintiffs filed their original complaint in Santa 26 Clara County Superior Court on August 19, 2011. Feld removed the case to this court on 27 1 28 See Docket No. 43. 1 Case No.: 11-5539 PSG ORDER 1 November 16, 2011. 2 On December 6, 2011, the parties appeared for an initial case management 2 conference, during which Plaintiffs admitted that Dennis and Gillet had not been served yet. The 3 court allowed Plaintiffs to obtain expedited discovery from Feld to help them serve Dennis and 4 Gillet and set January 17, 2012 as a deadline for service. According to her declaration in support of Plaintiffs’ opposition, Bolbol states that, despite 5 6 the court’s deadline, “[d]ue to the legal sparring over Plaintiffs’ Complaint, Plaintiffs decided to 7 wait until the Blue Unit [where Dennis and Gillet work] returned to the Bay Area – August of this 8 year – to serve Defendants Dennis James [sic] and Matthew Gillet.” 3 But Plaintiffs were unable to 9 serve Dennis and Gillet at that time. 4 On October 18, 2012, Bolbol hired a process server in United States District Court For the Northern District of California 10 another attempt to serve Dennis and Gillet while the circus was in Cleveland but they again were 11 not served. 5 Fed. R. Civ. P. 4(m) requires the court “on motion or on its own after notice to the plaintiff” 12 13 to dismiss an action without prejudice “[i]f a defendant is not served within 120 days after the 14 complaint is filed.” “But if the plaintiff shows good cause for the failure, the court must extend the 15 time for service for an appropriate period.” 6 Feld argues that dismissal of Dennis and Gillet is proper because more than 120 days have 16 17 passed since commencement of Plaintiffs’ action, and additionally because Plaintiffs failed to 18 comply with this court’s direction that the two must be served by January 17, 2012. 7 Plaintiffs respond that the failure to serve Dennis and Gillet “has not been through neglect 19 20 or lack of effort” but rather because Feld did not provide them with necessary information to locate 21 the two men. 8 Plaintiffs request the court to extend the deadline by which they must serve the men 22 2 See Docket No. 1. 23 3 See Docket No. 96 & 5. 24 4 See id. 25 5 See id. & 7. 26 6 Fed. R. Civ. P. 4(m). 27 7 See Docket No. 91. 28 8 See Docket No. 95. 2 Case No.: 11-5539 PSG ORDER 1 until January 26, 2013 and point to the nomadic nature of Dennis and Gillet’s profession and that 2 “they could not be reached behind the gates and fences of the arena where they were working and 3 residing” as good cause for the extension. 9 They assert that an extension would not prejudice Feld 4 because service on Dennis and Gillet at this point would “have no material effect on the pleadings 5 or the procedural aspects of the case,” especially in light of the identical allegations Plaintiffs lodge 6 against Feld, Dennis, and Gillet. 10 Plaintiffs overstate the simplicity of adding Dennis and Gillet at this stage of the 7 8 proceedings. Although technically the case remains at the pleading stages, trial is set for February 9 19, 2013. Neither party has moved to change that date, despite Plaintiffs’ refrain that “the schedule United States District Court For the Northern District of California 10 in this case will most certainly be amended.” 11 At this point, trial is less than three months away, 11 and Plaintiffs have yet to serve two defendants. Further complicating the situation, if Dennis and 12 Gillet were served within the timeframe Plaintiffs anticipate, they may not consent to this court’s 13 jurisdiction, which would require reassignment to a district court judge and would render the last 14 year of motion practice in this case a waste of time and judicial resources. 12 Even if the situation was as simple as Plaintiffs contend, they have not provided good cause 15 16 for failing to serve Dennis and Gillet up until this point. As Bolbol admits in her declaration, 17 Plaintiffs ignored this court’s January 17, 2012 deadline and instead waited for the circus to come 18 back to town. They appear to have gambled that they would be able to serve Dennis and Gillet 19 before Feld made its motion or the court noticed the deficiency, and unfortunately lost. Accordingly, the court GRANTS Feld’s motion to dismiss Dennis and Gillet without 20 21 prejudice. 22 IT IS SO ORDERED. 23 9 24 See id. 10 26 See id. Plaintiffs also appear to argue that Feld lacks standing to move to dismiss Dennis and Gillet. The court need not address that argument as it may on its own dismiss defendants who have not been served within the time limits set in Fed. R. Civ. P. 4(m). See Audio Toys, Inc. v. Smart AV Pty. Ltd., Case No. C 06-6298 SBA, 2007 WL 1655793, at *5 (N.D. Cal. June 7, 2007). 27 11 28 12 25 See Docket No. 95. See 28 U.S.C. § 636; Tripati v. Rison, 847 F.2d 548, 548-49 (9th Cir. 1988). 3 Case No.: 11-5539 PSG ORDER 1 Dated: November 15, 2012 _________________________________ PAUL S. GREWAL United States Magistrate Judge 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case No.: 11-5539 PSG ORDER

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