Saavedra v. Albin Manufacturing Corp. et al

Filing 22

ORDER Denying Without Prejudice (Doc. 20 ) Ex Parte Motion For Extension of Time to Serve Defendant Craig Smith. Signed by Judge M. James Lorenz on 3/17/2011. (srm)

-POR Saavedra v. Albin Manufacturing Corp. et al

Doc. 22

1 2 3 4 5 6 7 8 9 10 11 ALFREDO SAAVEDRA, 12 13 v. 14 ALBIN MANUFACTUING CORP., et al., 15 Defendants. 16 17 Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Civil No. 10cv2312 L(POR) ORDER DENYING WITHOUT PREJUDICE EX PARTE MOTION FOR EXTENSION OF TIME TO SERVE DEFENDANT CRAIG SMITH [doc. #20] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Plaintiff seeks a 120-day extension of time in which to serve defendant Craig Smith. The

18 Complaint was filed on November 9, 2010. Under Federal Rule of Civil Procedure 4(m), the 19 summons and complaint must be served within 120 days after the filing of the complaint. 20 Accordingly, service of process on defendant Craig Smith was required by March 9, 2011 but 21 plaintiff's request1 for an extension of time was filed on March 16, 2011. 22 Federal Rule of Civil Procedure 4(m) requires a showing of good cause for an extension

23 of time in which to serve a defendant. And Federal Rule of Civil Procedure 6(b) provides the 24 court with discretion to grant extensions of time. This is so even when the request is made after 25 the expiration of the time period to be extended, provided the request is made by motion and the 26 delay was caused by excusable neglect. FED. R. CIV. P. 6(b)(1)(B). 27 28 Requests for action by the Court must be filed as either a motion or an ex parte motion. In this case, the Court construes plaintiff's request as an ex parte motion.
10cv2312
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Dockets.Justia.com

1

Pioneer Investment Services Company v. Brunswick Associates established a balancing

2 test to determine whether an untimely filing is due to excusable neglect. 507 U.S. 380, 395 3 (1993); Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (en banc). The determination 4 whether neglect is excusable is an equitable one that depends on at least four factors: 5 6 7 8 Pincay, 389 F.3d at 855 (citing Pioneer, 507 U.S. at 395). 9 Plaintiff does not discuss any of the pertinent factors under Pioneer in his request and has (1) the danger of prejudice to the non-moving party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the moving party's conduct was in good faith.

10 offered no explanation for his failure to seek an extension of time in a prompt manner. Further, 11 in the absence of a showing that a 120-day extension is necessary, such an extensive time period 12 is excessive. 13 Because plaintiff has not made an appropriate showing that a 120-day extension of time is

14 warranted, plaintiff's request is DENIED WITHOUT PREJUDICE. 15 IT IS SO ORDERED.

16 DATED: March 17, 2011 17 18 19 COPY TO: 20 HON. LOUISA S. PORTER UNITED STATES MAGISTRATE JUDGE 21 22 ALL PARTIES/COUNSEL 23 24 25 26 27 28
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10cv2312

M. James Lorenz United States District Court Judge