Lenk v. Monolithic Power Systems, Inc. et al

Filing 22

ORDER DISCHARGING ORDER TO SHOW CAUSE AND EXTENDING DEADLINE TO SERVE DEFENDANTS. Signed by Judge Beth Labson Freeman on 12/7/2016. (blflc2S, COURT STAFF) (Filed on 12/7/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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KENNETH L. LENK,

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Case No. 16-cv-02625-BLF

Plaintiff,
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v.
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MONOLITHIC POWER SYSTEMS, INC.,
et al.,

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ORDER DISCHARGING ORDER TO
SHOW CAUSE AND EXTENDING
DEADLINE TO SERVE DEFENDANTS
[Re: ECF 19]

Defendants.

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On November 17, 2016, the Court issued an Order to Show Cause (“OSC”) why the case

United States District Court
Northern District of California

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should not be dismissed for Plaintiff Kenneth L. Lenk’s failure to serve Defendants Monolithic

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Power Systems (“Monolithic”) and Maurice Sciammas within the time required by Fed. R. Civ. P.

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4. ECF 18. In response to the OSC, Lenk details his attempts to serve Defendants, and concludes

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that he has complied with the service requirements of Fed. R. Civ. P. 4. Pl.’s Response to OSC,

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ECF 19.
Although a defendant may waive service, Defendants have explicitly refused to do so.

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Pl.’s Response to OSC ¶ 11. Thus, Plaintiff must comply with the Federal Rules of Civil

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Procedure. Although Fed. R. Civ. P. 4(e) permits service in accordance with state law in the state

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in which the district court is located or where service is made—in this case, California—Plaintiff

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has mistakenly construed the service requirements.1
Pursuant to section 415.30 of the California Code of Civil Procedure, a Plaintiff may

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effectively serve an individual defendant by mailing (by first-class mail or airmail, postage

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prepaid) a copy of the summons and of the complaint to the person to be served, together with two

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copies of the notice and acknowledgement of receipt of summons form (“acknowledgement

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Plaintiff indicates that he has complied with the requirements delineated on the website of the
Judicial Council of California. Pl.’s Response to OSC ¶ 24. Regardless of whether Plaintiff has
indeed complied with these requirements, he has failed to comply with the statutory requirements.

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form”) and a return envelope, postage prepaid, addressed to the sender. Cal. Civ. Proc. Code §

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415.30(a). Service of a summons sent in this manner is deemed complete on the date the written

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acknowledgement form is executed. Id. § 415.30(c). If the recipient fails to complete and return

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the acknowledgement form within 20 days, the Plaintiff must serve the individual in another, valid

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manner. Id. § 415.30(d). Plaintiff has not filed an executed acknowledgement form that indicates

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that Mr. Sciammas received the service by mail. Absent effecting another valid form of service

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and submitting proof to the Court, the Court cannot conclude that Plaintiff has effectively served

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Mr. Schimmas.
Moreover, neither California law nor the Federal Rule of Civil Procedure allow for service

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of a corporation by mail. See Fed. R. Civ. P. 4(h)(1); Cal. Civ. Proc. Code § 416.10; Hunstock v.

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United States District Court
Northern District of California

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Estate Dev. Corp., 22 Cal. 2d 205 (1963) (construing “delivery” as personal service). Thus,

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Plaintiff has not yet effected service on Monolithic either.
Nevertheless, given that Plaintiff is proceeding pro se, the Rule 4(m) service deadline will

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be extended in order to afford him a second chance to properly effect service of process. The

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service period contained in Rule 4(m) “operates not as an outer limit subject to reduction, but as an

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irreducible allowance.” Henderson v. United States, 517 U.S. 654, 661 (1996). Indeed, “Rule

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4(m) explicitly permits a district court to grant an extension of time to serve the complaint[.]”

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Mann v. Am. Airline, 324 F.3d 1088, 1090 (9th Cir. 2003).
Accordingly, Plaintiff shall have until January 6, 2017 to effect service on Defendants and

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file executed summons. If Plaintiff does not file executed summons on or before January 6,

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2017, the Court will dismiss the action pursuant to Fed. R. Civ. P. 41(b) without further notice.

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Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir.

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2005).

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IT IS SO ORDERED.
Dated: December 7, 2016
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BETH LABSON FREEMAN
United States District Judge

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