Fleming v. Colvin

Filing 9

ORDER Vacating Order to Show Cause and Extending Time for Service. Signed by Judge Lucy H. Koh on 6/13/16. (lhklc3, COURT STAFF) (Filed on 6/13/2016)

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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
Northern District of California

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JONATHAN BENJAMIN FLEMING,

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Plaintiff,

ORDER VACATING ORDER TO SHOW
CAUSE AND EXTENDING TIME FOR
SERVICE

v.

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Case No. 16-CV-00162-LHK

CAROLYN COLVIN,

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Re: Dkt. No. 8

Defendant.

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Before the Court is Plaintiff Jonathan Benjamin Fleming’s (“Plaintiff”) response to the

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Court’s May 18, 2016 order to show cause as to why the instant case should not be dismissed for

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failure to prosecute. ECF No. 8. In the May 18, 2016 order to show cause, the Court noted that

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Plaintiff had failed to file proof of timely service on Defendant Carolyn Colvin (“Defendant”).

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ECF No. 7. Having considered Plaintiff’s response, the relevant law, and the record in this case,

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the Court hereby VACATES the order to show cause and the hearing on the order to show cause

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set for June 16, 2016, at 1:30 p.m. The Court declines to dismiss the case for failure to prosecute,

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and extends the time for Plaintiff to effect service.

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I.

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BACKGROUND
On January 11, 2016, Plaintiff filed the instant appeal from the Social Security
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Case No. 16-CV-00162-LHK
ORDER VACATING ORDER TO SHOW CAUSE AND EXTENDING TIME FOR SERVICE

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Commissioner’s decision denying Plaintiff disability benefits. ECF No. 1. That same day, the

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Court issued a case scheduling order. ECF No. 4. Pursuant to Federal Rule of Civil Procedure

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4(m), Plaintiff had 90 days from January 11, 2016, or until April 11, 2016, to serve Defendant.

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See Fed. R. Civ. P. 4(m). On May 18, 2016, after Plaintiff failed to file a proof of service, the

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Court issued an order to show cause as to why the case should not be dismissed for failure to

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prosecute. ECF No. 7.
Plaintiff responded to the Court’s order to show cause on May 19, 2016. ECF No. 8. In a

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sworn declaration, Plaintiff’s counsel informed the Court that on May 12, 2016, Plaintiff served

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the complaint, summons, and case scheduling order by certified mail on the Social Security
Administration, the Attorney General of the United States, and the civil-process clerk at the U.S.

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United States District Court
Northern District of California

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Attorney’s Office. Id. ¶¶ 2–3. Plaintiff’s counsel acknowledges that service was untimely, but

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avers that counsel was unaware of a December 1, 2015 change to the Federal Rules of Civil

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Procedure that reduced the time for service from 120 days to 90 days. According to Plaintiff’s

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counsel, “[c]ounsel inadvertently, but in good faith . . . calendared the 120 days pursuant to what

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she believed to be FRCP Rule 4m.” Id. ¶ 5.

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II.

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LEGAL STANDARD
Prior to December 1, 2015, Federal Rule of Civil Procedure 4(m) provided a plaintiff with

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a “[t]ime [l]imit for [s]ervice” of 120 days after the filing of the complaint. Since December 1,

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2015, Rule 4(m) has provided a 90 day time limit: “If a defendant is not served within 90 days

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after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must

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dismiss the action without prejudice against that defendant or order that service be made within a

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specified time. But if the plaintiff shows good cause for the failure, the court must extend the time

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for service for an appropriate period.” Fed. R. Civ. P. 4(m).

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The Court must extend the time for service beyond 90 days if Plaintiff shows good cause.

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Id. In the Ninth Circuit, “[a]t a minimum, ‘good cause’ means excusable neglect.” In re Sheehan,

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253 F.3d 507, 512 (9th Cir. 2001). “[G]ood cause generally means that service has been

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attempted but not completed, that plaintiff was confused about the requirements of service, or that

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Case No. 16-CV-00162-LHK
ORDER VACATING ORDER TO SHOW CAUSE AND EXTENDING TIME FOR SERVICE

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plaintiff was prevented from serving defendants by factors beyond his control.” Chemehuevi

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Indian Tribe v. Wilson, 181 F.R.D. 438, 440 (N.D. Cal. 1998) (internal quotation marks omitted).

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However, an attorney’s ignorance of the rules, oversight, inadvertence, or mistake does not rise to

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the level of excusable neglect. See Townsel v. Cty. of Contra Costa, 820 F.2d 319, 320 (9th Cir.

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1987) (ignorance of the time of service under Rule 4(j)—the predecessor to Rule 4(m)—was not

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excusable neglect); Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985) (no good cause to extend

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time to serve opposing party where counsel inadvertently failed to calendar the 120 day deadline);

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see also Kyle v. Campbell Soup Co., 28 F.3d 928, 930–31 (9th Cir. 1994) (attorney’s mistake of

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law in interpreting the time to file a post-trial motion did not constitute excusable neglect under

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Federal Rule of Civil Procedure 6(b)).
Absent good cause, courts have discretion “to extend the time for service or to dismiss the

United States District Court
Northern District of California

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action without prejudice.” In re Sheehan, 253 F.3d at 513. The Ninth Circuit has not set forth

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specific factors to consider in making discretionary determinations under Rule 4(m). Id.

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However, the Ninth Circuit has noted that “a district court may consider factors like a statute of

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limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.” Efaw

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v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (internal quotation marks omitted). An extension

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of time for service may be retroactive. Wright v. City of Santa Cruz, 2014 WL 3058470, at *7

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(N.D. Cal. July 3, 2014).

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III.

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DISCUSSION
Plaintiff’s counsel acknowledges that service of Defendant was untimely but contends that

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good cause exists to extend the time for service. Plaintiff’s counsel asserts that counsel was

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unaware of the December 1, 2015 reduction in the time for service from 120 days to 90 days, and

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that “[c]ounsel inadvertently, but in good faith . . . calendared the 120 days pursuant to what she

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believed to be FRCP Rule 4m.” ECF No. 8.

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Plaintiff’s counsel’s inadvertence and ignorance of the December 1, 2015 change in Rule

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4(m) does not rise to the level of excusable neglect. See Townsel, 820 F.2d at 320 (finding that

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ignorance of the time of service was not excusable neglect); Wei, 763 F.2d at 372 (concluding that

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Case No. 16-CV-00162-LHK
ORDER VACATING ORDER TO SHOW CAUSE AND EXTENDING TIME FOR SERVICE

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no good cause existed where counsel inadvertently failed to calendar the 120 day deadline).

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Accordingly, good cause does not exist to extend the time for service. See Townsel, 820 F.2d at

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320; Wei, 763 F.2d at 372. In addition, the Court notes that 120 days from January 11, 2016, the

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date on which Plaintiff filed the complaint, would be May 10, 2016. Plaintiff did not effect

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service until two days later, on May 12, 2016. ECF No. 8. Thus, service of Defendant would not

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have been timely under the pre-December 1, 2015 version of Rule 4(m).

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Although Plaintiff has not established good cause, the Court exercises its broad discretion

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to grant an extension of the time for service. As noted above, in exercising this discretion “a

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district court may consider factors like a statute of limitations bar, prejudice to the defendant,
actual notice of a lawsuit, and eventual service.” Efaw, 473 F.3d at 1041. Here, Plaintiff effected

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United States District Court
Northern District of California

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service on Defendant on May 12, 2016. See ECF No. 8. Although service on Defendant was

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untimely, Plaintiff’s service by certified mail appears to be otherwise proper. See Fed. R. Civ. P.

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4(i) (providing that a party may serve the United States by sending a copy of the summons and

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complaint by certified mail to designated individuals). In addition, on May 17, 2016, Defendant

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filed a form indicating that Defendant consents to the jurisdiction of a magistrate judge. ECF No.

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6. It is thus apparent that Defendant has actual notice of the lawsuit.

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In addition, no prejudice to Defendant is evident from the delay in service. The length of

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delay was only thirty-two days, and there is no evidence of bad faith on the part of Plaintiff. See

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Rodriguez v. Lehigh Sw. Cement Co., 2015 WL 1325528, at *8 (N.D. Cal. Mar. 24, 2015)

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(extending time for service when three months had passed after the time for service under Rule

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4(m)). Moreover, according to Plaintiff, Plaintiff’s initial application for social security benefits

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was filed on April 23, 2012 and has been appealed through multiple levels of the administrative

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process. ECF Nos. 1, 8. The instant case will be determined based on the administrative record.

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Accordingly, the issues raised by the instant case are familiar to Defendant.

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Lastly, it appears that prejudice to Plaintiff is likely if the time for service is not extended.

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Federal law requires that any appeal of a final decision of the Social Security Commissioner be

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commenced in federal district court within 60 days of the final decision. 42 U.S.C. § 405(g).

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Case No. 16-CV-00162-LHK
ORDER VACATING ORDER TO SHOW CAUSE AND EXTENDING TIME FOR SERVICE

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According to Plaintiff, the final decision of the Social Security Commissioner in this case was

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rendered on November 5, 2015. See ECF No. 8, ¶ 8. Thus, were the Court to dismiss the instant

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case for untimely service, any attempt to re-file would be time-barred. This type of prejudice to

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Plaintiff supports extending the time for service. See United States v. 2,164 Watches, More or

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Less Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 773 (9th Cir. 2004) (noting

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that the running of the statute of limitations supports extending time for service); Fed. R. Civ. P. 4

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Advisory Committee Notes (“Relief [under Rule 4(m)] may be justified, for example, if the

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applicable statute of limitations would bar the refiled action . . .”).

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In sum, Plaintiff’s eventual service, Defendant’s actual notice of the lawsuit, the lack of
prejudice to Defendant, and the potential for prejudice to Plaintiff favor extending the time for

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United States District Court
Northern District of California

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service. In light of the foregoing, the Court exercises its discretion to retroactively extend the

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deadline for service to May 12, 2016. Thus, the Court vacates the order to show cause.

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By June 16, 2016, Plaintiff shall file a consent or declination to proceed before a

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magistrate judge. In addition, the parties are directed to follow the Court’s January 11, 2016

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scheduling order. ECF No. 4. Pursuant to the January 11, 2016 order, Defendant shall serve and

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file an answer together with a certified copy of the transcript of the administrative record within

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ninety days of receipt of service of the summons and complaint. Plaintiff shall serve and file a

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motion for summary judgment or for remand within thirty days of service of Defendant’s answer.

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Defendant shall serve and file any opposition or counter-motion within thirty days of service of

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Plaintiff’s motion. Plaintiff may serve and file a reply within fourteen days of service of

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Defendant’s opposition or counter-motion.

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IT IS SO ORDERED.

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Dated: June 13, 2016
______________________________________
LUCY H. KOH
United States District Judge

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Case No. 16-CV-00162-LHK
ORDER VACATING ORDER TO SHOW CAUSE AND EXTENDING TIME FOR SERVICE