Findley v. Colvin

Filing 9

ORDER EXTENDING TIME FOR SERVICE (approving 8 ). Signed by Judge Beth Labson Freeman on 1/6/2015. (blflc1, COURT STAFF) (Filed on 1/6/2015)

1 LISA DOUGLASS (CA Bar No. 269133)
COMMUNITY LAW CLINIC
2 Mills Legal Clinic at Stanford Law School
Crown Quadrangle, 559 Nathan Abbott Way
3 Stanford, California 94305-8610
Telephone: [phone]
4 Facsimile: [phone]
[e-mail]
5
Attorneys for Plaintiff
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

(San Jose Division)

11 Martin Eric Findley,

Case No. 5:14-cv-03581-BLF

12

Status Report Re: Summons and Motion
and Order Extending Time for Service

13

Plaintiff,
v.

14 Carolyn Colvin, Commissioner of Social
Security,
15
Defendant.
16
17
18
19
20
21
22
23

MARTIN ERIC FINDLEY, Plaintiff, by and through counsel, hereby moves this Court to
find good cause or to exercise discretion to extend time for service of the summons under Fed. R.
Civ. P. 4(c)(1), Fed. R. Civ. P. 4(c)(3), and Fed. R. Civ. P. 4(m) and 28 U.S.C. 1915. Plaintiff
requests that time for service be extended by a sufficient number of days to allow service of the
Summons issued on December 19, 2014 to be executed by US Marshal for the reasons explained
in this motion and the accompanying declaration.
DECLARATION

24
25
26
27
28

The Hon. Beth Labson Freeman

I, Lisa Douglass, declare as follows:

1.

I am counsel for the Plaintiff in the above-captioned case appealing a final order of
Case No. 5:14-cv-03581-BLF
Status Report and Mtn to Ext Time for Service

1 the Social Security Administration denying disability benefits under the Social Security Act.
2

2.

I have personal knowledge of the following facts.

3

3.

My office filed the complaint in this matter on August 7, 2014 along with a Motion

4 for Leave to Proceed in forma pauperis. This filing was done manually, in person, at the Clerk's
5 office. The complaint, cover sheet, and motion were e-filed by the Clerk's office.
6

4.

The Motion to Proceed in forma pauperis was granted on August 18, 2014.

7

5.

After the motion was granted, I assumed that service would be executed by US

8 Marshal. Fed. R. Civ. P. 4(c)(3) rule provides that the Court "must" order that service be made by
9 a United States marshal or deputy marshal or by a person specially appointed by the court, when
10 the plaintiff is, as here, authorized to proceed in forma pauperis under 28 U.S.C. 1915.
11

6. However, I had failed to note that the Order Granting Application for Leave to Proceed

12 in forma pauperis entered by this Court on August 18, 2014 did not contain language ordering the
13 US Marshal to "serve, without prepayment of fees, a copy of the complaint, any amendments,
14 scheduling orders, attachments, plaintiff's affidavit and this order upon the defendant." This is the
15 language used in the Court’s form Proposed Order and in the other orders our office had received
16 in prior cases. I wrongly assumed that summons would be issued and that service would be
17 executed by US Marshal prior to the 120 day due date, as in my prior IFP cases.
18

7.

On December 10, 2014, I received, and responded to emails, from Court staff

19 inquiring about status of service, which was due on December 5, 2014. On December 16, 2014
20 this Court entered an order requesting status update. On December 18, 2014, I filed a proposed
21 summons. On December 19, 2014, summons were issued as to Carolyn Colvin, U.S. Attorney and
22 U.S. Attorney General along with accompanying 285 forms authorizing service by US Marshal.
23
24

8.

Fed. R. Civ. P. 4(m) provides that the court “shall extend time for service for an

appropriate period” if plaintiff “shows good cause” for the failure to serve within 120 days and

25
26
27

permits the district court to grant such an extension even absent good cause. See Henderson v.
United States, 517 U.S. 654, 662, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996). District Courts have

28 broad discretion to event time for service under Rule 4(m). See Henderson v. United States, 517
2
Status Report and Mtn to Ext Time for Service

Case No. 5:14-cv-03581-BLF

1 U.S. 654, 661, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (concluding that “the 120-day provision
2 operates not as an outer limit subject to reduction, but as an irreducible allowance”); Mann v.
3

American Airlines, 324 F.3d 1088, 1090-91 (9th Cir. 2003).

4
9. Plaintiff, through counsel, requests the court find good cause or exercise discretion to

5

6 extend the time for service in this case.
7

DATED: January 5, 2014

8

Respectfully submitted,
COMMUNITY LAW CLINIC
Mills Legal Clinic at Stanford Law School

9
10

By: /s/ Lisa Douglass
LISA DOUGLASS
Director, Social Security Disability Project

11
12

Attorneys for Plaintiff

13
14

ORDER

15
Under Fed.R.Civ.P. 4(m) this Court exercises its discretion and orders that the time for

16

17 service be extended by _______ days for the US Marshal to execute service of the Summons and
18 Complaint as to Carolyn Colvin, US Attorney and US Attorney General.
19
20
21
22

Dated:

_________________________________________
THE HONORABLE BETH LABSON FREEMAN
United States District Judge

23
24
25
26
27
28
3
Status Report and Mtn to Ext Time for Service

Case No. 5:14-cv-03581-BLF