Verify Smart Corp. v. Scammell

Filing 10

ORDER granting 9 Motion to Extend Time. Proof of service due by 4/19/2025. Signed by Magistrate Judge Carla Baldwin on 3/5/2025. (Copies have been distributed pursuant to the NEF - GA)

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II.
A.

LEGAL ARGUMENT

There Is Good Cause To Extend The Deadline For Service Due To Plaintiff’s
Diligent But Unsuccessful Efforts At Service.

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Fed. R. Civ. P. 4(m) provides two avenues for relief when a plaintiff seeks to extend time

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to serve a summons and complaint. Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009)

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(“If a defendant is not served within [90] days after the complaint is filed, the court—on motion

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or on its own after notice to the plaintiff—must dismiss the action without prejudice against that

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defendant or order that service be made within a specified time. But if the plaintiff shows good

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cause for the failure, the court must extend the time for service for an appropriate period.”). “The

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first is mandatory: the district court must extend time for service upon a showing of good cause.”

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Id. “The second is discretionary: if good cause is not established, the district court may extend

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time for service upon a showing of excusable neglect.” Id.

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“Good cause” generally means “that service has been attempted but not completed, that

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plaintiff was confused about the requirements of service, or that plaintiff was prevented from

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serving defendants by factors beyond his control.” Chemehuevi Indian Tribe v. Wilson, 181 F.R.D.

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438, 440 (N.D. Cal. 1998) (emphasis added); see also Yates v. Yee Mei Cheung, No. C10-5404

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TEH, 2012 WL 3155700, at *3 (N.D. Cal. Aug. 2, 2012). Further, in 2015, the presumptive time

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for serving a defendant was reduced from 120 days to 90 days. Fed. R. Civ. P. 4(m), advisory

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committee’s notes (2015 amendment). The advisory committee noted that “[s]hortening the

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presumptive time for service will increase the frequency of occasions to extend the time. Id. More

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time may be needed, for example… when… a defendant is difficult to serve….” Id. (Emphasis

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added).

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Here, Plaintiff has exhausted all good faith attempts to serve Defendant and has been

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prevented from serving Defendant, by factors beyond Plaintiff’s control. Plaintiff was first

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attempting to serve the Defendant by delivering the Summons and Complaint to a process server

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in Canada to serve the Defendant at her home in Canada. See Zimmerman Declaration. Plaintiff

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also attempted to contact and locate Defendant through email. Id. Despite locating Defendant’s

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LV 6833792.4