Kaeo-Tomaselli v. Pi'ikoi Recovery House for Women et al
Filing
36
ORDER DENYING DEFENDANT IWALANI SOUZA'S MOTION TO DISMISS 32 . Signed by JUDGE LESLIE E. KOBAYASHI on 8/29/2012. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DION’E KAEO-TOMASELLI,
#A5004463,
Plaintiff,
vs.
PI`IKOI RECOVERY HOUSE FOR
WOMEN, et al.,
Defendants.
____________________________
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CIV. NO. 11-00670 LEK/BMK
ORDER DENYING DEFENDANT IWALANI
SOUZA’S MOTION TO DISMISS
ORDER DENYING DEFENDANT IWALANI SOUZA’S MOTION TO DISMISS
Before the court is Defendant Iwalani Souza’s motion to
dismiss for Plaintiff’s alleged failure to timely serve the
pleadings.1
ECF #32.
November 1, 2011.
Plaintiff initiated this action on
On December 9, 2011, Plaintiff filed a first
amended complaint (“FAC”).
ECF #6.
On December 16, 2011, the
court directed Plaintiff to complete and return the service
documents to the U.S. Marshal’s Service, so that the Marshal
could serve the FAC on Plaintiff’s behalf.
ECF #7, #8, #9.
The
Marshal effected service on Defendant T.J. Mahoney and Associates
on January 6, 2012, but was unable to serve Souza, although
Plaintiff apparently provided Souza’s correct alternate address.
See ECF #12, #13.
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Souza’s motion and answer spell her name alternately as
“Ewalani” Souza and “Iwalani” Souza.
On June 28, 2012, the court extended the time for
service of the pleadings until August 13, 2012.
ECF #21.
The
Marshal sent the waiver of service documents to Souza on
August 3, 2012, who received them and the FAC on or about
August 8, 2012.
See ECF #30.
On that same day the court granted
Plaintiff’s motion to file a second amended complaint (“SAC”) and
directed its service.
ECF #26.
Federal Rule of Civil Procedure 4(m) provides:
If a defendant is not served within 120 days after the
complaint is filed, the court—on motion or on its own
after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time. But if the
plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period.
Fed. R. Civ. P. 4(m).
“[ D]istrict courts have broad discretion
under General Rule 4(m) to extend time for service even without a
showing of good cause.”
United States v. 2,164 Watches, More or
Less Bearing a Registered Trademark of Guess?, Inc., 366 F.3d
767, 772 (9th Cir. 2004); In re Sheehan, 253 F.3d 507, 513 (9th
Cir. 2001).
“[T]he district court may extend time for service
upon a showing of excusable neglect.”
Lemoge v. United States,
587 F.3d 1188, 1198 (9th Cir. 2009) (citing Sheehan, 253 F.3d at
514).
Souza is deemed to have received service of process on
the day that the Marshal sent her the waiver documents, August 3,
2012.
See Fed. R. Civ. P. 4(d)(1-3), & 12(a)(1)(A)(ii) (counting
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service from the date the waiver is sent, not from the date it is
received).
Therefore, service was timely and Souza’s motion to
dismiss is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 29, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
Kaeo-Tomaselli v. Pi'ikoi Recovery House for Women, et al., 1:11-cv-00670 LEK-BMK,
ORDER DENYING DEFENDANT IWALANI SOUZA’S MOTION TO DISMISS; psa/Ords/dmp/
2012/Tomaselli 11-670 lek (dny mdsm fail timely serve)
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