Cadles of West Virginia, LLC v. Alvarez

• Court: District Court, S.D. California
• Decided: May 27, 2021
• Docket: 3:20-cv-02534
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CADLES OF WEST VIRGINIA, LLC, Case No.: 20-CV-2534 TWR (WVG)

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION FOR LEAVE TO SERVE PROCESS OUTSIDE THE 90-DAY 14 MARIO ALVAREZ, et al., PERIOD 15 Defendants. (ECF No. 18) 16

17 18 Before the Court is Plaintiff’s Motion for Leave to Serve Process Outside the 90- 19 Day Period. (ECF No. 18.) For the reasons set forth below, the Court GRANTS the 20 Motion. 21 LEGAL STANDARD 22 Under Fed. R. Civ. P. 4(m), the court must dismiss a case without prejudice or “order 23 that service be made within a specified time” if the plaintiff has not made timely service. 24 Fed. R. Civ. P. 4(m). The Rule also allows the court to “extend the time for service for an 25 appropriate period” if the plaintiff “shows good cause for the failure.” Id. The Ninth 26 Circuit has stated that Rule 4(m) provides “two avenues for relief.” Lemoge v. United 27 States, 587 F.3d 1188, 1198 (9th Cir. 2009). “The first is mandatory: the district court must 28 extend time for service upon a showing of good cause.” Id. (citation omitted). At a 1 minimum, “good cause” means “excusable neglect” and may at times require a showing of 2 the following factors: “(a) the party to be served personally received actual notice of the 3 lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely 4 prejudiced if his complaint were dismissed.” Id. n. 3. “The second is discretionary: if good 5 cause is not established, the district court may extend time for service upon a showing of 6 excusable neglect.” Id. at 1193. (citation omitted). Still, even without a showing of good 7 cause, the court has discretion under Rule 4(m) to “extend the time for service or to dismiss 8 the action without prejudice.” In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001). The 9 court’s discretion is broad, and there is no specific test to apply in exercising its discretion. 10 Id. 11 ANALYSIS 12 Here, the Court GRANTS additional time for service. Plaintiff claims that it has 13 tried to serve the remaining Defendants many times to no avail, allegedly because 14 Defendants have evaded service. (ECF No. 18 at 3–5.) These efforts, in light of the alleged 15 evasion of service, constitute good cause for an extension. See Ewing v. Pollard, No. 19- 16 CV855-CAB-BGS, 2019 WL 4736201, at *2 (S.D. Cal. Sept. 27, 2019) (finding that good 17 cause exists under Rule 4(m) because of the Defendant’s “apparent attempts to 18 evade service.”); see also Levy v. Mass Mut., No. C 12-01298 LB, 2012 WL 5897266, at 19 *1 (N.D. Cal. Nov. 21, 2012) (noting that “[e]vasion of service could also constitute good 20 cause for delay in service,” or if a plaintiff has “attempted to serve a defendant but has not 21 yet completed it … or was prevented from serving a defendant because of events outside 22 of its control.”). Alternatively, the Court finds in its discretion that additional time is 23 warranted based on Plaintiff’s good-faith efforts. As requested, Plaintiff will have sixty 24 (60) days from the date of this Order to complete service on the remaining Defendants. 25 The Court DENIES WITHOUT PREJUDICE Plaintiff’s request to serve by U.S. Mail 26 or the United States Marshals. (See ECF No. 18 at 8–9.) 27 / / / 28 / / / l CONCLUSION 2 For the reasons stated above, the Court GRANTS Plaintiff's Motion for an 3 || additional sixty (60) days from the date of this Order to serve the remaining Defendants. 4 IT IS SO ORDERED. 5 6 || Dated: May 27, 2021 7 “Ten 12 D (ore g Honorable Todd W. Robinson 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28