Lycurgan Inc. v. Jones

Filing 160

ORDER Denying #158 Ex Parte Motion Motion for Extension of Time to Serve Unknown Named Defendants. Signed by Judge Janis L. Sammartino on 1/8/2018. (mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LYCURGAN, INC., a California
corporation, d/b/a ARES ARMOR,

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ORDER DENYING EX PARTE
MOTION FOR EXTENSION OF
TIME TO SERVE UNKNOWN
NAMED DEFENDANTS

Plaintiff,

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Case No.: 14-CV-548 JLS (BGS)

v.
EARL GRIFFITH, an individual,
UNKNOWN NAMED TECHNOLOGIST,
an individual, UNKNOWN NAMED
AGENTS I-VII, individuals, and DOES IX, in their individual capacities,

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(ECF No. 158)

Defendants.

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Presently before the Court is Plaintiff Lycurgan Inc.’s Motion for Extension of

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Time to Serve the Unknown Named Defendants Pursuant to F.R.C.P. 4(m). (“MTN,”

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ECF No. 158.) Plaintiff requests an additional sixty days in which to serve the Unknown

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Named Defendants. (Id. at 7.) The United States filed an Opposition, (“Opp’n,” ECF

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No. 159), to the Motion.

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Federal Rule of Civil Procedure 4(m) requires defendants to be served within 90

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days after the complaint is filed. Fed. R. Civ. P. 4(m). A court must extend the time for

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service if a plaintiff shows good cause. Id. If plaintiff cannot show good cause then a

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court still has discretion to extend the time for service. In re Sheehan, 253 F.3d 507, 513
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14-CV-548 JLS (BGS)

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(9th Cir. 2001). At a minimum, good cause means “excusable neglect.” Id. at 512.

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Here, Plaintiff contends that good cause exists and, if it does not, the Court should

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exercise its discretion to grant an extension of time to serve certain Defendants. (MTN

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2.)

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The Court briefly recounts the most recent litigation in this case. On May 30,

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2017, the United States, on behalf of Unknown Named Defendants, moved to dismiss

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Plaintiff’s Complaint for failing to serve the Unknown Named Defendants within the

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original time for service, (ECF No. 126). This Court denied Defendants’ Motion to

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Dismiss on October 18, 2017 and granted Plaintiff an additional ninety (90) days in

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which to serve the Unknown Named Defendants. (ECF No. 153.) Plaintiff filed a

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motion to take limited, immediate discovery on the same day the Order was published,

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October 18th. (ECF No. 154.) Plaintiff states that from October 18, 2017 to November

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17, 2017 the parties discussed the possibility of either settling the case or the Government

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voluntarily providing the names of the individual Defendants. (MTN 3.) In reliance on

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the discussions with the Government, Plaintiff withdrew its motion to take discovery on

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October 19, 2017, one day after it was filed. (ECF No. 155.)

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On November 17, 2017, counsel for both parties met and conferred in person.

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(MTN 4.) Counsel for the United States, Mr. Butcher, proposed a joint motion where the

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names of the individual defendants would be disclosed, but kept under seal.

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Plaintiff’s counsel rejected this proposal. (Id.) While the discussions were ongoing,

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Plaintiff’s counsel represents that he was decisively engaged in various trials, hearings,

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and brief writing on other cases. (Id.)

(Id.)

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Plaintiff’s counsel again reached out to the Government on December 20, 2017.

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(Id.) Mr. Butcher responded that the Government’s position remained the same as it was

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on the November 17th meeting. (Id.) On December 22, 2017, Plaintiff re-filed its

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motion for early discovery. (ECF No. 157.) On these facts, Plaintiff believes it will not

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be able to prosecute its motion and serve Defendants by the deadline for service, January

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16, 2018. (MTN 6.)
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14-CV-548 JLS (BGS)

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Plaintiff’s request is not operating on a blank slate. In its Prior Order, the Court

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found that good cause to extend time for service did not exist because Plaintiff’s actions

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or omissions failed to demonstrate excusable neglect. (See ECF No. 153, at 8–11.)

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Plaintiff waited nearly two years to pursue its previous early discovery request. (Id. at 9;

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see also ECF No. 117.) Instead, the Court exercised its discretion to extend Plaintiff’s

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time for service. In doing so, the Court stated that it “will not, barring exceptional

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circumstances, be amenable to granting further discretion to Plaintiff.” (ECF No. 153, at

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13–14.)

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Plaintiff’s situation does not rise to any exceptional circumstances. In its prior

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order, the Court cited with approval the Ninth Circuit’s standard for serving defendants of

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unknown identity: “the plaintiff should be given an opportunity through discovery to

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identify the unknown defendants, unless it is clear that discovery would not uncover the

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identities, or that the complaint would be dismissed on other grounds.” (Id. at 9 (quoting

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Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1990)).) Plaintiff initially pursued

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its discovery motion until it voluntarily withdrew the motion at the request of the

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Government. The Court cannot fault Plaintiff for engaging in negotiations with the

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Government; indeed, this fulfills the mandate for a speedy resolution to litigation. See

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Fed. R. Civ. P. 1.

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That said, the Court made it eminently clear that it expected Plaintiff to diligently

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execute service within the time granted by the Court. Furthermore, the Court granted

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Plaintiff ninety days to complete service—this was above and beyond the original time to

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complete service as well as several intervening years where Plaintiff did not attempt early

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discovery. Plaintiff, instead, pursued litigation in other cases and unilaterally rejected an

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offer by the Government that would potentially allow this litigation to move forward to

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the merits of Plaintiff’s claim.

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14-CV-548 JLS (BGS)

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The Court finds that Plaintiff’s conduct since October 18, 2017 does not present

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good cause and the Court declines to exercise its discretion.

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DENIES Plaintiff’s Ex Parte Motion for Extension of Time to Serve Unknown Named

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Defendants, (ECF No. 158).

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Therefore, the Court

IT IS SO ORDERED.
Dated: January 8, 2018

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14-CV-548 JLS (BGS)