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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 TERENCE JONES, CASE NO. 2:23-cv-01730-LK 11 Plaintiff, ORDER GRANTING MOTION 12 v. FOR EXTENSION OF TIME; DENYING MOTION TO SERVE 13 MELANIE R. CHEAIRS et al., BY ALTERNATE MEANS 14 Defendants. 15 16 This matter comes before the Court on Plaintiff Terence Jones’ Response to Order to Show 17 Cause and Request for an Extension of Time to serve Defendants, Dkt. No. 25, and his Motion to 18 Have Defendants Served by Alternative Means, Dkt. No. 26.1 For the reasons set forth below, the 19 Court grants the motion for an extension of time to respond to the order to show cause and serve 20 Defendants, and denies the motion for service by alternate means. 21 22 23 1 Mr. Jones filed his motion for alternate service ex-parte sealed, id. at 1, but the Court denied his request to file that 24 motion under seal for lack of good cause under Local Civil Rule 5(g), Dkt. No. 28. 1 I. BACKGROUND 2 Mr. Jones has sought and the Court has granted him several extensions to serve Defendants. 3 On July 1, 2024, the Court issued an order to show cause why the case should not be dismissed for 4 failure to prosecute and failure to serve because he had not served Defendants within 90 days as
5 required by Federal Rule of Civil Procedure 4(m). Dkt. No. 8 at 1–2. After Mr. Jones belatedly 6 responded and requested additional time, the Court extended the service deadline to September 20, 7 2024. Dkt. No. 12 at 2. Mr. Jones moved for another extension of the service deadline on 8 September 25, 2024. Dkt. No. 13. The Court granted that motion and ordered him to serve 9 Defendants and file proof of service with the Court by November 20, 2024. Dkt. No. 14 at 3. The 10 Court also ordered Mr. Jones to show cause why the case should not be dismissed for lack of 11 subject matter jurisdiction because the complaint did not show that the amount in controversy was 12 met. Dkt. No. 19 at 2. Mr. Jones partially responded to the order to show cause but also sought 13 additional time to file a more complete response and to amend his complaint to augment his 14 jurisdictional allegations. Dkt. No. 22 at 2. The Court extended the deadline to February 28, 2025
15 to serve and respond to the order to show cause. Dkt. No. 23. 16 On February 28, 2025, Mr. Jones filed these two motions. Dkt. Nos. 25, 26. Defendants 17 have not responded to either motion. Two of the Defendants have filed a motion for judgment on 18 the pleadings, Dkt. No. 37, which will be addressed by separate order once the Court is satisfied 19 that it has subject matter jurisdiction. 20 II. DISCUSSION 21 A. The Court Grants the Motion for an Extension 22 The Court must extend the 90-day service period upon a showing of good cause and, absent 23 such a showing, retains broad discretion to dismiss the action or extend the period for service. Fed.
24 R. Civ. P. 4(m); In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). “[I]f good cause is not 1 established, the district court may extend time for service upon a showing of excusable neglect.” 2 Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). 3 Mr. Jones states that he has “been delayed in filing the amendment or supplement” to his 4 complaint “due to addressing issues in the Texas courts regarding the underlying state case and
5 the lingering issues stated in the previous motion for an extension of time in regards to the death 6 in the family.” Dkt. No. 25 at 2. He further avers that he has been “working on the issue of serving 7 the defendants in this case,” id., an assertion supported by the affidavits of service he has filed, 8 Dkt. Nos. 30–35. 9 Based on Mr. Jones’ representations, the Court grants Mr. Jones leave to amend his 10 complaint to bolster his jurisdictional allegations and finds good cause to extend the deadline to 11 serve the remaining Defendants and respond to the Court’s order to show cause. Within 30 days 12 of this Order, Mr. Jones must (1) file an amended complaint, or otherwise respond to the order to 13 show cause,2 and (2) either serve all remaining Defendants with the original complaint (or the 14 amended complaint if he files one) or request that Defendants waive service under Federal Rule
15 of Civil Procedure 4(d) and file proof of service or that waivers were requested. Absent the filing 16 of an amended complaint, the Court will evaluate whether it has subject matter jurisdiction based 17 on the current record. 18 B. The Court Denies the Motion for Alternate Service 19 Mr. Jones seeks permission to have Defendants served by alternate means, including by 20 following the law where service is made or by a United States Marshal. Dkt. No. 26 at 2. His 21 request to serve Defendants according to the law of the state where service is accomplished is 22
2 If Mr. Jones files an amended complaint, he must indicate on the amended complaint how it differs from the original 23 complaint “by bracketing or striking through the text to be deleted and underlining or highlighting the text to be added” as required by Local Civil Rule 15(a). An amended complaint supersedes the original complaint, so an amended 24 complaint “must not incorporate by reference any part of the preceding pleading, including exhibits.” LCR 15(a). 1 denied as moot because the Federal Rules of Civil Procedure already allow it. Fed. R. Civ. P. 2 4(e)(1). The Court may authorize alternative means of service in Washington and Texas, where 3 Defendants are located, Dkt. No. 5 at 2; see also, e.g., Wash. Rev. Code 4.28.100; Tex. R. Civ. P. 4 106(b)(2), but Mr. Jones has not shown that alternate service is justified under either state’s
5 processes. 6 Under Federal Rule of Civil Procedure 4(c)(3), “[a]t the plaintiff’s request, the court may 7 order that service be made by a United States marshal or deputy marshal or by a person specially 8 appointed by the court.” The Court is obligated to order such service if the plaintiff is “authorized 9 to proceed in forma pauperis under 28 U.S.C. § 1915” as Mr. Jones is here. Id.; see also Dkt. No. 10 4.3 However, the Court is not obligated to grant the request if Defendants were already served with 11 process. Jamshidy v. Oruzgami, No. 2:25-cv-00273 DJC CKD (PS), 2025 WL 894602, at *1 (E.D. 12 Cal. Mar. 24, 2025). Nor is the Court required to order service if subject matter jurisdiction is 13 lacking. Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter 14 jurisdiction, the court must dismiss the action.”); see also Robinson v. Butte Cnty., No. 2:21-CV-
15 1845-TLN-DMC, 2021 WL 5240285, at *1 (E.D. Cal. Oct. 13, 2021) (considering the existence 16 of subject matter jurisdiction as a “threshold matter” before deciding whether to order the Marshals 17 to serve). 18 Here, an order requiring the Marshals to serve the current complaint would be premature 19 for several reasons. First, Mr.
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 TERENCE JONES, CASE NO. 2:23-cv-01730-LK 11 Plaintiff, ORDER GRANTING MOTION 12 v. FOR EXTENSION OF TIME; DENYING MOTION TO SERVE 13 MELANIE R. CHEAIRS et al., BY ALTERNATE MEANS 14 Defendants. 15 16 This matter comes before the Court on Plaintiff Terence Jones’ Response to Order to Show 17 Cause and Request for an Extension of Time to serve Defendants, Dkt. No. 25, and his Motion to 18 Have Defendants Served by Alternative Means, Dkt. No. 26.1 For the reasons set forth below, the 19 Court grants the motion for an extension of time to respond to the order to show cause and serve 20 Defendants, and denies the motion for service by alternate means. 21 22 23 1 Mr. Jones filed his motion for alternate service ex-parte sealed, id. at 1, but the Court denied his request to file that 24 motion under seal for lack of good cause under Local Civil Rule 5(g), Dkt. No. 28. 1 I. BACKGROUND 2 Mr. Jones has sought and the Court has granted him several extensions to serve Defendants. 3 On July 1, 2024, the Court issued an order to show cause why the case should not be dismissed for 4 failure to prosecute and failure to serve because he had not served Defendants within 90 days as
5 required by Federal Rule of Civil Procedure 4(m). Dkt. No. 8 at 1–2. After Mr. Jones belatedly 6 responded and requested additional time, the Court extended the service deadline to September 20, 7 2024. Dkt. No. 12 at 2. Mr. Jones moved for another extension of the service deadline on 8 September 25, 2024. Dkt. No. 13. The Court granted that motion and ordered him to serve 9 Defendants and file proof of service with the Court by November 20, 2024. Dkt. No. 14 at 3. The 10 Court also ordered Mr. Jones to show cause why the case should not be dismissed for lack of 11 subject matter jurisdiction because the complaint did not show that the amount in controversy was 12 met. Dkt. No. 19 at 2. Mr. Jones partially responded to the order to show cause but also sought 13 additional time to file a more complete response and to amend his complaint to augment his 14 jurisdictional allegations. Dkt. No. 22 at 2. The Court extended the deadline to February 28, 2025
15 to serve and respond to the order to show cause. Dkt. No. 23. 16 On February 28, 2025, Mr. Jones filed these two motions. Dkt. Nos. 25, 26. Defendants 17 have not responded to either motion. Two of the Defendants have filed a motion for judgment on 18 the pleadings, Dkt. No. 37, which will be addressed by separate order once the Court is satisfied 19 that it has subject matter jurisdiction. 20 II. DISCUSSION 21 A. The Court Grants the Motion for an Extension 22 The Court must extend the 90-day service period upon a showing of good cause and, absent 23 such a showing, retains broad discretion to dismiss the action or extend the period for service. Fed.
24 R. Civ. P. 4(m); In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). “[I]f good cause is not 1 established, the district court may extend time for service upon a showing of excusable neglect.” 2 Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). 3 Mr. Jones states that he has “been delayed in filing the amendment or supplement” to his 4 complaint “due to addressing issues in the Texas courts regarding the underlying state case and
5 the lingering issues stated in the previous motion for an extension of time in regards to the death 6 in the family.” Dkt. No. 25 at 2. He further avers that he has been “working on the issue of serving 7 the defendants in this case,” id., an assertion supported by the affidavits of service he has filed, 8 Dkt. Nos. 30–35. 9 Based on Mr. Jones’ representations, the Court grants Mr. Jones leave to amend his 10 complaint to bolster his jurisdictional allegations and finds good cause to extend the deadline to 11 serve the remaining Defendants and respond to the Court’s order to show cause. Within 30 days 12 of this Order, Mr. Jones must (1) file an amended complaint, or otherwise respond to the order to 13 show cause,2 and (2) either serve all remaining Defendants with the original complaint (or the 14 amended complaint if he files one) or request that Defendants waive service under Federal Rule
15 of Civil Procedure 4(d) and file proof of service or that waivers were requested. Absent the filing 16 of an amended complaint, the Court will evaluate whether it has subject matter jurisdiction based 17 on the current record. 18 B. The Court Denies the Motion for Alternate Service 19 Mr. Jones seeks permission to have Defendants served by alternate means, including by 20 following the law where service is made or by a United States Marshal. Dkt. No. 26 at 2. His 21 request to serve Defendants according to the law of the state where service is accomplished is 22
2 If Mr. Jones files an amended complaint, he must indicate on the amended complaint how it differs from the original 23 complaint “by bracketing or striking through the text to be deleted and underlining or highlighting the text to be added” as required by Local Civil Rule 15(a). An amended complaint supersedes the original complaint, so an amended 24 complaint “must not incorporate by reference any part of the preceding pleading, including exhibits.” LCR 15(a). 1 denied as moot because the Federal Rules of Civil Procedure already allow it. Fed. R. Civ. P. 2 4(e)(1). The Court may authorize alternative means of service in Washington and Texas, where 3 Defendants are located, Dkt. No. 5 at 2; see also, e.g., Wash. Rev. Code 4.28.100; Tex. R. Civ. P. 4 106(b)(2), but Mr. Jones has not shown that alternate service is justified under either state’s
5 processes. 6 Under Federal Rule of Civil Procedure 4(c)(3), “[a]t the plaintiff’s request, the court may 7 order that service be made by a United States marshal or deputy marshal or by a person specially 8 appointed by the court.” The Court is obligated to order such service if the plaintiff is “authorized 9 to proceed in forma pauperis under 28 U.S.C. § 1915” as Mr. Jones is here. Id.; see also Dkt. No. 10 4.3 However, the Court is not obligated to grant the request if Defendants were already served with 11 process. Jamshidy v. Oruzgami, No. 2:25-cv-00273 DJC CKD (PS), 2025 WL 894602, at *1 (E.D. 12 Cal. Mar. 24, 2025). Nor is the Court required to order service if subject matter jurisdiction is 13 lacking. Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter 14 jurisdiction, the court must dismiss the action.”); see also Robinson v. Butte Cnty., No. 2:21-CV-
15 1845-TLN-DMC, 2021 WL 5240285, at *1 (E.D. Cal. Oct. 13, 2021) (considering the existence 16 of subject matter jurisdiction as a “threshold matter” before deciding whether to order the Marshals 17 to serve). 18 Here, an order requiring the Marshals to serve the current complaint would be premature 19 for several reasons. First, Mr. Jones has not yet fully responded to the Court’s order to show cause 20 why it should not dismiss for lack of subject matter jurisdiction, Dkt. No. 19, and he seeks an 21 extension to do so as set forth above. Second, he intends to amend his complaint, Dkt. No. 22 at 22 3, and it makes little sense to have the Marshals serve an obsolete complaint. Third, Mr. Jones has 23 3 Local Civil Rule 4(c) relieves the Marshals Service “from any and all civil process serving responsibilities within 24 this district on behalf of private litigants” unless ordered by the Court or pursuant to an express statutory provision. 1 served some Defendants and may have already served the rest, potentially rendering a service order 2 unnecessary. Dkt. No. 26 at 2; Dkt. Nos. 30–35. Fourth, “before requesting service by a marshal, 3 the plaintiff should first attempt to make service by some other means provided for in the rule; 4 only when this proves unfeasible should the plaintiff request that the district court direct a marshal
5 to serve the summons and complaint.” Wright & Miller, 4A Fed. Prac. & Proc. Civ. § 1090 (4th 6 ed.); id. & n.3 (noting that plaintiff should first request that defendants waive service to reduce the 7 burden on the Marshals).4 Mr. Jones does not state whether he has sought waivers of service from 8 Defendants. Fed. R. Civ. P. 4(d). Accordingly, the Court denies the motion for service by alternate 9 means without prejudice, meaning that Mr. Jones can renew his request if he is still unable to serve 10 some of the Defendants and they decline to waive service. Any such renewed request must 11 specifically state which Defendants have been served and which ones have not. 12 III. CONCLUSION 13 For the foregoing reasons, the Court GRANTS Mr. Jones’ Request for an Extension of 14 Time to serve Defendants and respond to the order to show cause, Dkt. No. 25, and DENIES
15 without prejudice his Motion to Have Defendants Served by Alternative Means, Dkt. No. 26. 16 Dated this 7th day of April, 2025. 17 A 18 Lauren King United States District Judge 19 20 21 22 23
24 4 The waiver of service form can be found here: https://www.uscourts.gov/sites/default/files/ao399.pdf.