Boxabl Inc. v. Tassev

Opinion

4 *** 5 Boxabl, Inc., 6 Plaintiff(s), 7 2:23-cv-0760-CDS-VCF

8 v. ORDER

9 Yanni Tassev a/k/a Iani Tassev,

10 Defendant(s). 11 Before the Court is plaintiff’s motion for second extension of time to serve amended complaint 12 and emergency motion. (ECF No. 42). 13 Plaintiff is requesting up to and including October 11, 2023 to perfect service on Yanni Tassev 14 a/k/a Iani Tassev. 15 Pursuant to Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served within 90 days 16 after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss 17 the action without prejudice against that defendant or order that service be made within a specified time. 18 But if the plaintiff shows good cause for the failure, the court must extend the time for service for an 19 appropriate period.” “The 90-day time limit imposed by Rule 4(m) expires 90 days after the first 20 complaint in which the defendant is named...” is filed. Bolden v. City of Topeka, 441 F.3d 1129, 1148 21 (10th Cir. 2006)(emphasis added). The 90–day time limit for service does not restart each time a plaintiff 22 files a new amended complaint. Id. The district court may extend time for service of process retroactively 23 after the 90-day service period has expired. See Mann v. American Airlines, 324 F.3d 1088, 1090 (9th 24 Cir.2003). 25 The complaint was filed on April 27, 2023. The deadline to effectuate service of process was July 26, 2023. Id; Fed. R. Civ. P. 4(m). Plaintiff states that the process server has made numerous attempts 1 serve defendant at his last known addresses, but service was unsuccessful. On August 16, 2023, the 2 || court granted Plaintiffs initial request of a 30-day extension to perfect service on defendant Tassev. (ECF 3 || No. 39). Plaintiff is requesting an additional 30 days to perfect service on defendant. (ECF No. 42). 4 The time to effectuate service upon defendant expired on September 11, 2023, and plaintiff must 5 a showing of good cause or excusable neglect in order for the court to extend this deadline for an 6 || appropriate period. See Fed. R. Civ. P. 4(m); Lemoge, 587 F.3d at 1198; Mann, 324 F.3d at 1090 (the 7 || court may extend the deadline for service of process retroactively). 8 Here, the court finds that good cause warrants extending the service of process deadline. 9 Accordingly, and for good cause shown, 10 IT IS ORDERED that plaintiff's motion for second extension of time to serve amended complaint 11 emergency motion (ECF No. 42), is GRANTED. The time to perfect service is extended to and 12 |} including October 11, 2023. 13 DATED this 25th day of September 2023. Ane Ss □□ iM CAM FERENBACH 5 UNITED STATES MAGISTRATE JUDGE

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