Nelson v. Housing and Community Development Services of San Diego County

Filing 8

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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 BENNETT NELSON, Plaintiff, 11 12 Case No.: 3:22-cv-02044-RBM-DDL ORDER DISMISSING CASE WITHOUT PREJUDICE v. 13 14 15 HOUSING AND COMMUNITY DEVELOPMENT SERVICES OF SAN DIEGO, 16 Defendant. 17 18 On December 23, 2022, Plaintiff Bennett Nelson (“Plaintiff”) filed a complaint 19 against Housing and Community Development Services of San Diego County 20 (“Defendant”) (Doc. 1), and a summons was issued the same day. (See Doc. 3.) On March 21 24, 2023, the undersigned issued an Order to Show Cause (“OSC”) directing Plaintiff to 22 show cause, in writing, on or before April 7, 2023, why this matter should not be dismissed 23 for failure to prosecute because Plaintiff had not filed proof of service demonstrating 24 Defendant was properly or timely served. (Doc. 6.) Plaintiff responded to the OSC on 25 April 3, 2023. (Doc. 7.) For the reasons discussed below, the Court declines to extend the 26 time for Plaintiff to effect service and DISMISSES this action without prejudice pursuant 27 to Federal Rule of Civil Procedure (“Rule”) 4(m). 28 /// 1 3:22-cv-02044-RBM-DDL 1 I. LEGAL STANDARD 2 Pursuant to Rule 4(m), “[i]f a defendant is not served within 90 days after the 3 complaint is filed, the court—on motion or on its own after notice to the plaintiff—must 4 dismiss the action without prejudice against that defendant or order that service be made 5 within a specified time.” FED. R. CIV. P. 4(m). However, “if the plaintiff shows good cause 6 for the failure, the court must extend the time for service for an appropriate period.” Id. 7 Good cause, at a minimum, means excusable neglect. Boudette v. Barnette, 923 F.2d 754, 8 756 (9th Cir. 1991). “In addition to excusable neglect, a plaintiff may be required to show 9 the following factors to bring the excuse to the level of good cause: ‘(a) the party to be 10 served personally received actual notice of the lawsuit; (b) the defendant would suffer no 11 prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.’” 12 Lemoge v. United States, 587 F.3d 1188, 1198 n.3 (9th Cir. 2009) (citing Boudette, 923 13 F.2d at 756). 14 II. DISCUSSION 15 The Court’s OSC issued on March 24, 2023 ordered Plaintiff to provide good cause 16 for his failure to serve Defendant within the 90-day time frame prescribed by Rule 4(m). 17 (See Doc. 6 at 1.) The Court specifically cautioned that failure to timely respond may result 18 in dismissal of this lawsuit. (Id. at 1–2.) Plaintiff did respond to the OSC on April 3, 2023. 19 (Doc. 7.) However, Plaintiff’s response does not provide good cause for his failure to 20 prosecute. (See id.) Rather, Plaintiff provides a three-sentence response alleging that he 21 is “currently on Long Term Disability due to employer harassment.” (Id. at 1.) Moreover, 22 Plaintiff attaches documentation “as verification of the harassment.” (Id.) The provided 23 documentation relates to his underlying claims and includes correspondence between 24 Plaintiff and his employer as well as information related to his disability/unemployment 25 status. (See Doc. 7.) To date, Plaintiff has not effectuated service, and Plaintiff has not 26 informed the Court that it ever attempted service on Defendant. 27 It is well established that “[p]ro se litigants must follow the same rules of procedure 28 that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987); see also 2 3:22-cv-02044-RBM-DDL 1 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir.1995) (finding that a pro se litigant’s failure 2 to follow procedural rules justified dismissal of civil rights action); Carter v. Comm’r, 784 3 F.2d 1006, 1008 (9th Cir. 1986) (“[a]lthough pro se, he is expected to abide by the rules of 4 the court in which he litigates”). It has been roughly 146 days since this action was filed 5 and summons was issued, which far exceeds the time for service outlined in Rule 4(m). 6 See FED. R. CIV. P. 4(m) (providing that the time for service is “90 days after the complaint 7 is filed”). Given the explicit instruction provided to Plaintiff through the March 24, 2023 8 OSC, the Court finds Plaintiff has failed to show good cause for his failure to prosecute 9 this action. Under these circumstances, there is no basis for extending the expired time for 10 service outlined in Rule 4(m), and dismissal of this action without prejudice is warranted. 11 See Tucker v. City of Santa Monica, No. CV 12-5367 FMO MAN, 2013 WL 653996, at *2 12 (C.D. Cal. Feb. 20, 2013) (dismissing action without prejudice “for failure to effect service 13 of process in compliance with Rule 4(m)”); see also Allan Fam. Tr. v. City of San Diego, 14 No. 21-CV-2049-JO, 2022 WL 7675275, at *2 (S.D. Cal. Oct. 13, 2022). 15 16 17 18 19 20 21 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 ____________________________________ HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 3 3:22-cv-02044-RBM-DDL

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