Dang v. Pontier

• Court: District Court, S.D. California
• Decided: February 28, 2020
• Docket: 3:19-cv-01519
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH DANG d/b/a LAW OFFICE OF Case No.: 19cv1519 GPC(AHG) JOSEPH DANG, an individual, 12 ORDER DENYING DEFENDANT Plaintiff, 13 PONTIER’S MOTION TO DISMISS v. FOR FAILURE TO SERVE 14 COMPLAINT AND SUMMONS DAVID PONTIER, an individual; 15 TEOCO Corporation Group Benefit Plan, [Dkt. No. 6.] 16 a self funded group health plan; TEOCO Corporation, a Delaware Corporation; 17 UMR Inc., a Delaware Corporation; Glenn 18 C. Nusbaum, an individual; Paul E. Kim, MD Inc., a California corporation; Kevin 19 Yoo, an individual, 20 Defendants. 21

22 Before the Court is Defendant David Pontier’s motion to dismiss the complaint for 23 failure to serve the complaint and summons. (Dkt. No. 6.) Plaintiff Joseph Dang filed an 24 opposition. (Dkt. No. 25.) No reply was filed. For the reasons stated below, the Court 25 DENIES David Pontier’s motion to dismiss. 26 / / / 27 / / / 28 1 Background 2 On August 13, 2019, Plaintiff Joseph Dang d/b/a/ Law Office of Joseph Dang 3 (“Plaintiff”) filed a complaint in interpleader, pursuant to 28 U.S.C. § 1335, against 4 Defendants David Pontier (“Pontier”), TEOCO Corporation Group Benefit Plan, TEOCO 5 Corporation as Plan Sponsor, UMR Inc., Glenn Nusbaum, D.C., Paul E. Kim, MD and 6 Kevin Yoo, M.D. (Dkt. No. 1, Compl.) Plaintiff is in possession of $32,764.62 in the 7 name of David Pontier, a former client, representing funds remaining from a personal 8 injury settlement. (Id. ¶¶ 12, 13.) All Defendants have made conflicting demands upon 9 Plaintiff for the funds. (Id. ¶¶ 15-20.) On August 22, 2019, an order for interpleader 10 deposit was filed and $32,764.62 was deposited into the Court’s Interest Bearing- 11 Registry Account and invested in the Court Registry Investment System. (Dkt. No. 4.) 12 On January 3, 2020, Defendant Pontier, proceeding pro se, filed a motion to 13 dismiss for failure to serve the complaint and summons. (Dkt. No. 6.) Plaintiff filed an 14 opposition. (Dkt. No. 25.) 15 Discussion 16 Federal Rule of Civil Procedure (“Rule”) 4(m), provides that if “a defendant is not 17 served within 90 days after the complaint is filed, the court--on motion or on its own after 18 notice to the plaintiff--must dismiss the action without prejudice against that defendant or 19 order that service be made within a specified time. But if the plaintiff shows good cause 20 for the failure, the court must extend the time for service for an appropriate period.” Fed. 21 R. Civ. P. 4(m). “District courts have broad discretion to extend time for service under 22 Rule 4(m).” Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007). With the 1993 23 amendments to the Rules, “courts have been accorded discretion to enlarge the [time] 24 period ‘even if there is no good cause shown.’” Henderson v. United States, 517 U.S. 25 654, 662 (1996). In deciding whether to extend time to serve under Rule 4(m), the court 26 may consider factors “like a statute of limitations bar, prejudice to the defendant, actual 27 notice of a lawsuit, and eventual service.” Efaw, 473 F.3d at 1041 (9th Cir. 2007) 28 (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998)). 1 Plaintiff does not deny that Pontier was served 66 days late and filed an affidavit of 2 service indicating that Pontier was served on January 11, 2020, (Dkt. No. 24), and admits 3 there was no good cause. But Plaintiff claims that Pontier is not prejudiced because he 4 had notice of the complaint around October 29, 2019, when Plaintiff mailed him a letter 5 informing him that the interpleader case was filed and that the funds were deposited with 6 the Court. (Dkt. No. 6 at 31.) In fact, Pontier filed a motion to dismiss before he was 7 served indicating he had notice of the complaint. Finally, Plaintiff argues that even if the 8 Court were to grant dismissal, the case would be refiled and served again. 9 Because Pontier was served with the complaint and summons, albeit 66 days late, 10 had notice about the lawsuit in October 2019, and no prejudice or statute of limitations 11 bar has been shown, the Court exercises its broad discretion and enlarges the time period 12 beyond the 90-day period. Thus, the Court DENIES Pontier’s motion to dismiss for 13 failing to serve the complaint and summons.2 14 / / / 15 / / / 16 / / / 17

18 1 Page numbers are based on the CM/ECF pagination. 19 2 The Court notes that attached to Pontier’s motion to dismiss for failure to serve complaint and summons include “motions” entitled “Interpleader Claims Barred by Statute of Limitations”, “Request 20 for Return of Person Property $32,764.62”, “Request for Sanctions”; “Request for Attorney Fees and 21 Costs”, “Interpleader Claims Non Existent”, and “Summary of Facts” that the Court will not address because Pontier did not obtain a hearing date as required by the Southern District of California Local 22 Rules. Moreover, the Court notes that Pontier has attempted to file numerous other motions that have been rejected on discrepancies for failing to obtain a hearing date from the court. (Dkt. Nos. 10-14, 16, 23 17, 26, 34, 35.) The Court DIRECTS Pontier to the Southern District of California Local Rules that can be found on the Court’s website at https://www.casd.uscourts.gov/rules/local-rules.aspx. Unless 24 otherwise ordered by the judge, “[a]ll hearing dates for any matters on which a ruling is required must 25 be obtained from the clerk of the judge to whom the case is assigned.” Local Civ. R. 7.1(a), (b). The Court allowed the filing and briefing of the instant motion as it did not involve an issue concerning a 26 factual dispute and there was a sufficient basis to grant dismissal as no proof of service had been filed with the Court. Moreover, due to the filing of the motion on January 3, 2020, Pontier was promptly 27 served on January 11, 2020. In order for the Court to consider any further motions by Pontier, he is directed to comply with the Local Civil Rules and to contact chambers to obtain a hearing date 28 1 Conclusion 2 Based on the above, the Court DENIES Pontier’s motion to dismiss for failing to 3 ||serve complaint and summons. The hearing date set on February 28, 2020 shall be 4 || vacated. 5 IT IS SO ORDERED. 6 7 Dated: February 28, 2020 8 Hon. athe Cae 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28