Noonan v. Seattle City Light

Filing 12

ORDER granting defendant's 6 Motion to Dismiss by Judge Ricardo S Martinez.(RS) cc plaintiff

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  1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 11 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Plaintiff, 12 13 Case No. C15-1249 RSM TIMOTHY A. NOONAN, v. SEATTLE CITY LIGHT, 14 Defendant. 15 I. 16 17 18 19 20 INTRODUCTION This matter comes before the Court on Defendant Seattle City Light’s Motion to Dismiss Pursuant to Rules 4(j) and 4(m). Dkt. #6. Defendant moves for dismissal, arguing that Plaintiff’s claims are barred for failure to properly serve the summons by “delivering a 21 copy of the summons and of the complaint to its chief executive officer” or as provided under 22 state law, as required by Rule 4(j). Id. at 1. Plaintiff Timothy A. Noonan responds, but does 23 not deny that he failed to serve Defendant in compliance with this rule. Dkt. #10. For the 24 reasons set forth below, the Court agrees with Defendant, GRANTS its Motion, and dismisses 25 26 Plaintiff’s case. 27 // 28 // ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 1   1 II. BACKGROUND 2 Plaintiff’s Complaint was filed with the Court on August 7, 2015. Dkt. #1. Although 3 the Complaint was delivered to Seattle City Light’s paralegal on August 17, 2015, it has never 4 been served on the City Clerk. Dkt. #8 at 2; Dkt. #7 at 25. The City notified the Plaintiff on 5 6 7 8 9 10 September 17, 2015, that his attempt at service had been ineffective. Id. at 27-28. Plaintiff has not since served the City Clerk. Dkt. #8 at 2. III. DISCUSSION A municipal corporation must be served by “delivering a copy of the summons and of the complaint to its chief executive officer” or service as provided for in state law. Fed. R. Civ. 11 12 P. 4(j). Washington State law provides for service to be on the mayor, city manager, city clerk 13 or designated agent. RCW 4.28.080(2). The City of Seattle has designated the City Clerk as its 14 agent for service of process under this statute. SMC 3.42.030. Service must be accomplished 15 within 90 days after the date of filing of the complaint. Fed. R. Civ. P. 4(m). 16 Where service is not made within the timeframe specified in Fed. R. Civ. Proc. 4(m), as 17 18 here, Courts perform a two-step analysis: (1) if plaintiff can show good cause for defective 19 service, then the Court must extend the time period, and (2) if there is no good cause, the Court 20 has discretion to dismiss or to extend the time period for service. In re Sheehan, 253 F.3d 507, 21 512 (9th Cir. 2001). “At a minimum, ‘good cause’ [for failure to timely serve a complaint] 22 23 means excusable neglect.” Boudette v. Barnette, 923 F.2d 754 (9th Cir. 1991). Plaintiff has the 24 burden to show good cause. Id. A Plaintiff does not meet the good cause standard merely 25 because he is acting pro se. Hearst v. West, 31 Fed. Appx. 366, 369 (9th Cir. 2002); c.f. Ghazali 26 v. Moran, 46 F.3d 52 (9th Cir.1995) (“pro se litigants are bound by the rules of procedure”). 27 28 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 2   1 Defendant argues that Plaintiff improperly served the Office of the Superintendent for 2 Seattle City Light instead of the City Clerk. Defendant goes on to argue that the time limit 3 should not be extended for service because the City brought the defect to Plaintiff’s attention 4 and Plaintiff failed to correct his mistake. Dkt. #6 at 5. In Response, Plaintiff argues that he 5 6 “believed that service had been met” when he served a paralegal at the office of the 7 Superintendent, Dkt. #10 at 1-2. Plaintiff argues that his lawsuit has merit. Id. at 2. Plaintiff 8 fails to explain why he did not correct his mistake after receiving the September 17, 2015, letter. 9 On Reply, Defendant argues that Plaintiff has failed to show good cause. Dkt. #11 at 2. The 10 Court agrees. Plaintiff’s ignorance of the law, or the merits of his case, cannot alone constitute 11 12 good cause for failing to serve within the Rule 4(m) deadline. The Court finds that Plaintiff was 13 on notice of the defect in service, yet failed to rectify within the 90-day time limit set forth in 14 Rule 4(m), and that this constitutes inexcusable neglect under Boudette, supra. As such, this 15 case must be dismissed under Rule 4(m). 16 IV. CONCLUSION 17 18 Having reviewed the relevant pleadings, the declarations and exhibits attached thereto, 19 and the remainder of the record, the Court hereby finds and ORDERS that: 20 1) Defendant’s Motion to Dismiss (Dkt. #6) is GRANTED. 21 2) Plaintiff’s claims are DISMISSED. 22 23 24 25 26 27 3) This case is CLOSED. DATED this 29 day of February 2016. A RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 28 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 3

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