Metcalfe v. State of California Department of Corrections & Rehabilitation, et al

Filing 21

ORDER DECLINING TO DISMISS PLAINTIFFS CASE AND VACATING ORDER TO SHOW CAUSE HEARING; ORDER SETTING CASE MANAGEMENT CONFERENCE. Signed by Judge Lucy H. Koh on October 22, 2012. (lhklc1, COURT STAFF) (Filed on 10/22/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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)
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Plaintiff,
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v.
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CALIFORNIA DEPARTMENT OF
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CORRECTIONS & REHABILITATION;
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SALINAS VALLEY STATE PRISON (“SVSP”))
WARDEN A. HEDGPETH; FORMER SVSP )
WARDEN M. EVANS; FORMER SVSP CHIEF )
DEPUTY WARDEN G. NEOTTI; FORMER
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SVSP CHIEF DEPUTY WARDEN G. LEWIS; )
CORRECTIONAL TRAINING FACILITY
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(“CTF”) WARDEN R. GROUNDS; FORMER )
CTF WARDEN(A) C. NOLL; and DOES 1
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THROUGH 50 INCLUSIVE,
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Defendants.
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)

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I.

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RONALD METCALFE,

Case No.: 5:12-CV-1445-LHK
ORDER DECLINING TO DISMISS
PLAINTIFF’S CASE AND
VACATING ORDER TO SHOW
CAUSE HEARING; ORDER
SETTING CASE MANAGEMENT
CONFERENCE

Background

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On July 27, 2012, this Court issued an Order to Show Cause (“OSC”) why Plaintiff Ronald

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Metcalfe’s (“Plaintiff”) Complaint should not be dismissed because of Plaintiff’s failure to comply

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with Federal Rule of Civil Procedure 4(m). ECF No. 9. Generally, Rule 4(m) requires dismissal of

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a defendant where the plaintiff has failed to serve the defendant within 120 days, unless there is a

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showing of good cause for the delay or unless the Court finds that it should exercise its discretion

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Case No.: 12-CV-1445
ORDER DECLINING TO DISMISS PLAINTIFF’S CASE AND VACATING ORDER TO SHOW CAUSE
HEARING; ORDER SETTING CASE MANAGEMENT CONFERENCE

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to enlarge plaintiff’s time to effect service. When the Court issued its OSC, 127 days had passed

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since Plaintiff filed his Complaint, and no Defendants had been served. ECF No. 9.

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On August 15 and 16, 2012, two weeks after the Court’s OSC, Plaintiff filed proofs of

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service for all Defendants except G. Lewis and M. Evans. See ECF No. 10-13, 15. Subsequently,

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on August 22, 2012, Defendant Lewis filed an Answer to the Complaint, suggesting he received

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actual notice of the Complaint notwithstanding Plaintiff’s failure to file a proof of service. See

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ECF No. 14.

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On August 29, 2012, Plaintiff filed a response to the OSC stating that “[t]he reason for the
delay in serving… [D]efendants was that [P]laintiff had been waiting for the case closure and a

United States District Court
For the Northern District of California

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Right to Sue Letter from the complaint he filed with the Department of Fair Employment and

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Housing and to amend his [C]omplaint to reflect the EEOC Case Closure.” ECF No. 16. Plaintiff

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states that he received notice of the EEOC case closure and a Right to Sue Letter on August 15,

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2012 (within one day of Plaintiff’s filing of proofs of service on all Defendants except Defendants

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Lewis and Evans). Id. Plaintiff further stated that he was “exercising due diligence in order to

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serve” Defendant Evans. Id. Plaintiff filed a notice of voluntary dismissal as to Defendant Evans

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on October 17, 2012. ECF No. 19.

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II.

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Analysis
The time for serving the summons and complaint is set forth in Federal Rule of Civil

Procedure 4(m). Rule 4(m) provides that:
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 plaintiff--must 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.

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“Rule 4(m) provides two avenues for relief. The first is mandatory: the district court must extend

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time for service upon a showing of good cause. The second is discretionary: if good cause is not

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established, the district court may extend time for service upon a showing of excusable neglect.”

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Lemoge v. U.S., 587 F.3d 1188, 1198 (9th Cir.2009) (citing In re Sheehan, 253 F.3d 507, 512, 514

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(9th Cir. 2001)).

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Case No.: 12-CV-1445
ORDER DECLINING TO DISMISS PLAINTIFF’S CASE AND VACATING ORDER TO SHOW CAUSE
HEARING; ORDER SETTING CASE MANAGEMENT CONFERENCE

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At a minimum, “good cause” means excusable neglect. Boudette v. Barnette, 923 F.2d 754,

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756 (9th Cir. 1991). In addition to excusable neglect, the Ninth Circuit has held that a plaintiff

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seeking to establish good cause may be required to show three factors: “(a) the party to be served

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received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff

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would be severely prejudiced if his complaint were dismissed.” Id.; In re Sheehan, 253 F.3d at

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512.

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Here, several of the good cause factors identified in Boudette are absent. Specifically,

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Plaintiff has not presented any evidence that all Defendants had actual notice of the lawsuit by July

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20, 2012. Plaintiff also has not presented facts showing he would be severely prejudiced if his

United States District Court
For the Northern District of California

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complaint were dismissed. The Court therefore concludes that Plaintiff has not demonstrated good

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cause such that an extension of time is mandatory under Rule 4(m). See In re Sheehan, 253 F.3d at

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512 (finding no good cause where plaintiff failed to show Boudette factors were satisfied).

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Absent good cause, district courts have broad, though not unlimited, discretion to extend

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time for service. Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir.2007). The Ninth Circuit has not

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set forth specific factors to consider in making discretionary determinations under Rule 4(m). In re

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Sheehan, 253 F.3d at 513. However, the Ninth Circuit has held that excusable neglect may provide

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grounds pursuant to which a court may exercise its discretion to extend a plaintiff’s time to effect

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service. See Lemoge, 587 F.3d at 1198 (“[T]he district court may extend time for service upon a

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showing of excusable neglect.”). “In making extension decisions under Rule 4(m) a district court

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may [also] consider factors ‘like a statute of limitations bar, prejudice to the defendant, actual

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notice of a lawsuit, and eventual service.’” Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir.2007)

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(quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir.1998)). Furthermore,

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Courts may consider whether the plaintiff has substantially complied with the service requirements.

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Tyson v. City of Sunnyvale, 159 F.R.D. 528, 530 (N.D.Cal.1995).

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Here the Court concludes that it should exercise its discretion to extend the time for service

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of the Complaint because Plaintiff’s failure to serve Defendants earlier was due to excusable

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neglect. In determining whether neglect is excusable, a court should examine “at least four factors:

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Case No.: 12-CV-1445
ORDER DECLINING TO DISMISS PLAINTIFF’S CASE AND VACATING ORDER TO SHOW CAUSE
HEARING; ORDER SETTING CASE MANAGEMENT CONFERENCE

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(1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact

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on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.”

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Lemoge, 587 F.3d at 1192 (quoting Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir.

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2000)).

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Here, Plaintiff was required to serve all Defendants by July 20, 2012. Plaintiff states that

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he failed to serve the Complaint by this date because he was waiting for his EEOC case to be

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closed and to receive a Right to Sue Letter. ECF No. 16. Plaintiff received this notice on August

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15, 2012. Id. Within one day of receiving the notice, Plaintiff served all Defendants except

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Defendants Lewis and Evans. ECF No. 10-13, 15. Thus, all Defendants, except Defendant Evans

United States District Court
For the Northern District of California

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and Lewis, were served within 26 days of the service deadline.

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Furthermore, while no proof was served with respect to Defendant Lewis, he does appear to

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have received actual notice of the Complaint as he filed an answer, along with several other

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Defendants, on August 22, 2012, only 33 days of the service deadline. The only Defendant who

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has neither been served nor filed an answer is Defendant Evans, and he has been dismissed. ECF

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No. 19.

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In light of these facts, the Court concludes that all four excusable neglect factors are

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satisfied. The delay in serving Defendants Department of Corrects & Rehabilitation, Salinas

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Valley State Prison, G. Neotti, R. Groungs, and C. Noll was only 26 days. Similarly, Defendant

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Lewis, while not formally served, had notice of the Complaint within 33 days of the service

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deadline. The meager delay in this case is unlikely to have prejudiced Defendants. Plaintiffs stated

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reason for the delay (i.e. the fact that he had not received a Right to Sue Letter) is understandable.

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Furthermore, given Plaintiff’s diligence in serving Defendants after he received the Right to Sue

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Letter, the Court concludes that Plaintiff acted in good faith. Accordingly, the Court concludes that

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Plaintiff’s failure to effect service earlier is excusable.

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The Court therefore ORDERS nunc pro tunc that the deadline to serve Defendants

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Department of Corrects & Rehabilitation, Salinas Valley State Prison, G. Neotti, R. Groungs, and

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C. Noll be enlarged to August 23, 2012. The Court also ORDERS that the deadline to serve

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Case No.: 12-CV-1445
ORDER DECLINING TO DISMISS PLAINTIFF’S CASE AND VACATING ORDER TO SHOW CAUSE
HEARING; ORDER SETTING CASE MANAGEMENT CONFERENCE

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Defendant Lewis shall be enlarged to October 25, 2012. Plaintiff shall file either a proof of service

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or a waiver of service as to Defendant Lewis by this date.

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Plaintiff is also hereby ORDERED to file an amended complaint reflecting the EEOC case

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closure by October 25, 2012. The OSC hearing scheduled for October 24, 2012 is VACATED. A

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case management conference shall be held on October 31, 2012 at 2:00 p.m. The parties’ joint case

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management statement is due October 25, 2012.

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IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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Dated: October 22, 2012

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 12-CV-1445
ORDER DECLINING TO DISMISS PLAINTIFF’S CASE AND VACATING ORDER TO SHOW CAUSE
HEARING; ORDER SETTING CASE MANAGEMENT CONFERENCE