Nelson v. Housing and Community Development Services of San Diego County
Filing
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ORDER dismissing case without prejudice. Signed by District Judge Ruth Bermudez Montenegro on 5/18/2023.(All non-registered users served via U.S. Mail Service)(jpp)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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BENNETT NELSON,
Plaintiff,
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Case No.: 3:22-cv-02044-RBM-DDL
ORDER DISMISSING CASE
WITHOUT PREJUDICE
v.
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HOUSING AND COMMUNITY
DEVELOPMENT SERVICES OF SAN
DIEGO,
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Defendant.
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On December 23, 2022, Plaintiff Bennett Nelson (“Plaintiff”) filed a complaint
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against Housing and Community Development Services of San Diego County
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(“Defendant”) (Doc. 1), and a summons was issued the same day. (See Doc. 3.) On March
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24, 2023, the undersigned issued an Order to Show Cause (“OSC”) directing Plaintiff to
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show cause, in writing, on or before April 7, 2023, why this matter should not be dismissed
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for failure to prosecute because Plaintiff had not filed proof of service demonstrating
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Defendant was properly or timely served. (Doc. 6.) Plaintiff responded to the OSC on
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April 3, 2023. (Doc. 7.) For the reasons discussed below, the Court declines to extend the
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time for Plaintiff to effect service and DISMISSES this action without prejudice pursuant
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to Federal Rule of Civil Procedure (“Rule”) 4(m).
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3:22-cv-02044-RBM-DDL
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I.
LEGAL STANDARD
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Pursuant to Rule 4(m), “[i]f a defendant is not served within 90 days after the
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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
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within a specified time.” FED. R. CIV. P. 4(m). However, “if the plaintiff shows good cause
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for the failure, the court must extend the time for service for an appropriate period.” Id.
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Good cause, at a minimum, means excusable neglect. Boudette v. Barnette, 923 F.2d 754,
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756 (9th Cir. 1991). “In addition to excusable neglect, a plaintiff may be required to show
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the following factors to bring the excuse to the level of good cause: ‘(a) the party to be
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served personally received actual notice of the lawsuit; (b) the defendant would suffer no
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prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.’”
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Lemoge v. United States, 587 F.3d 1188, 1198 n.3 (9th Cir. 2009) (citing Boudette, 923
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F.2d at 756).
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II.
DISCUSSION
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The Court’s OSC issued on March 24, 2023 ordered Plaintiff to provide good cause
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for his failure to serve Defendant within the 90-day time frame prescribed by Rule 4(m).
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(See Doc. 6 at 1.) The Court specifically cautioned that failure to timely respond may result
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in dismissal of this lawsuit. (Id. at 1–2.) Plaintiff did respond to the OSC on April 3, 2023.
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(Doc. 7.) However, Plaintiff’s response does not provide good cause for his failure to
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prosecute. (See id.) Rather, Plaintiff provides a three-sentence response alleging that he
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is “currently on Long Term Disability due to employer harassment.” (Id. at 1.) Moreover,
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Plaintiff attaches documentation “as verification of the harassment.” (Id.) The provided
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documentation relates to his underlying claims and includes correspondence between
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Plaintiff and his employer as well as information related to his disability/unemployment
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status. (See Doc. 7.) To date, Plaintiff has not effectuated service, and Plaintiff has not
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informed the Court that it ever attempted service on Defendant.
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It is well established that “[p]ro se litigants must follow the same rules of procedure
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that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987); see also
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3:22-cv-02044-RBM-DDL
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Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir.1995) (finding that a pro se litigant’s failure
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to follow procedural rules justified dismissal of civil rights action); Carter v. Comm’r, 784
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F.2d 1006, 1008 (9th Cir. 1986) (“[a]lthough pro se, he is expected to abide by the rules of
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the court in which he litigates”). It has been roughly 146 days since this action was filed
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and summons was issued, which far exceeds the time for service outlined in Rule 4(m).
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See FED. R. CIV. P. 4(m) (providing that the time for service is “90 days after the complaint
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is filed”). Given the explicit instruction provided to Plaintiff through the March 24, 2023
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OSC, the Court finds Plaintiff has failed to show good cause for his failure to prosecute
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this action. Under these circumstances, there is no basis for extending the expired time for
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service outlined in Rule 4(m), and dismissal of this action without prejudice is warranted.
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See Tucker v. City of Santa Monica, No. CV 12-5367 FMO MAN, 2013 WL 653996, at *2
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(C.D. Cal. Feb. 20, 2013) (dismissing action without prejudice “for failure to effect service
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of process in compliance with Rule 4(m)”); see also Allan Fam. Tr. v. City of San Diego,
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No. 21-CV-2049-JO, 2022 WL 7675275, at *2 (S.D. Cal. Oct. 13, 2022).
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III.
CONCLUSION
Based on the foregoing, the Court DISMISSES this action without prejudice
pursuant to Rule 4(m).
IT IS SO ORDERED.
Dated: May 18, 2023
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HON. RUTH BERMUDEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE
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3:22-cv-02044-RBM-DDL
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