Martinez v. Ford Motor Company

Opinion

1 2 3 4 5 6 7 8 9 12 13 JORGE MARTINEZ, Case No. 22-cv-1082-MMA (BGS)

14 Plaintiff, ORDER: 15 v. (1) DISCHARGING ORDER TO 16 FORD MOTOR COMPANY, et al., SHOW CAUSE; 17 Defendants. (2) GRANTING PLAINTIFF’S 18 REQUEST TO EXTEND TIME FOR 19 SERVICE; AND

20 (3) REQUIRING REMAINING 21 PARTIES TO RESPOND TO FIRST AMENDED COMPLAINT 22

23 [Doc. No. 31] 24 25 Plaintiff Jorge Martinez (“Plaintiff”) initiated this action on June 24, 2022. See 26 Doc. No. 1. On April 17, 2023, the Court issued an order requiring Plaintiff to show 27 cause why Defendant Norm Reeves Ford Lincoln (“Norm Reeves”) should not be 28 dismissed for failure to timely complete service. Doc. No. 31. On May 17, 2023, 1 Plaintiff filed a proof of service of the Complaint on Norm Reeves and a response to the 2 Court’s order to show cause. Doc. No. 34. In his response, Plaintiff notes that his first 3 service attempt on Norm Reeves was on July 1, 2022, but that the service attempt failed 4 because of an incorrect address. Id. at 6. Plaintiff states that Defendant Ford Motor 5 Company (“Ford”) subsequently removed this case from state court after Plaintiff’s first 6 service attempt. Id. Plaintiff also notes that the federal summons for Norm Reeves was 7 not issued until May 8, 2023,1 and that he promptly served the summons on May 9, 2023. 8 Id. at 6–7. In light of Plaintiff’s response and counsel’s declaration, the Court 9 DISCHARGES its April 17, 2023 order to show cause. 10 In his response, Plaintiff also requests that the Court retroactively extend the 11 deadline for service of the operative complaint and summons on Norm Reeves. Id. at 8. 12 Rule 4 of the Federal Rules of Civil Procedure governs service of the summons and 13 complaint and provides, in relevant part: 14 If a defendant is not served within 90 days after the complaint is filed, the 15 court—on motion or on its own after notice to the plaintiff—must dismiss the 16 action without prejudice against the defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, 17 the court must extend the time for service for an appropriate period. 18 19 Fed. R. Civ. P. 4(m). Thus, a showing of good cause requires the Court to grant an 20 extension of time for service. Id. Counsel’s mistake, inadvertence, or oversight does not 21 constitute good cause for an extension of time under Rule 4(m). Wei v. State of Hawaii, 22 763 F.2d 370, 372 (9th Cir. 1985). Absent a showing of good cause, the Court also has 23 discretion under Rule 4(m) to either order that service be made within a specified time or 24 to dismiss the action without prejudice. Fed. R. Civ. P. 4(m); see also In re Sheehan, 253 25 26 27 1 However, the Court notes that because Plaintiff did not serve Norm Reeves with the Complaint and state court summons before the case was removed, Plaintiff requested that a summons be issued from 28 1 || F.3d 507, 513 (9th Cir. 2001) (“[U]nder the terms of the rule, the court’s discretion is 2 || broad.”). 3 Here, as stated above, Plaintiff initiated this action on June 24, 2022. See Doc. 4 ||No. 1. Ford removed this action on July 25, 2022. Id. Subsequent to removal, this case 5 gone through two rounds of motions to dismiss, yet service on Norm Reeves did not 6 occur until after Plaintiff was prompted by this Court in its April 17, 2023 order to show 7 || cause, which was over 90 days after the Complaint was filed. Plaintiff's response and 8 ||counsel’s declaration do not address reasons for why Plaintiff never followed up on 9 service after the failed first attempt until the Court’s order to show cause. The Court 10 assumes that service was never completed due to counsel’s mistake or oversight. 11 Counsel’s mistake or oversight does not constitute good cause for an extension of 12 || time under Rule 4. See Wei, 763 F.2d at 372 (reasoning that Rule 4(m) “is intended to 13 || force parties and their attorneys to be diligent in prosecuting their causes of action” and if 14 || an attorney’s mistake were to constitute good cause then “the good cause exception 15 || would swallow the rule’’). 16 However, the Court will exercise its discretion and not dismiss Norm Reeves at 17 || this time. Accordingly, the Court GRANTS Plaintiff's request to retroactively extend 18 for service. 19 In addition, the Court notes that Plaintiff opted to not file a Second Amended 20 || Complaint following the Court’s April 17, 2023 Order on Ford’s and Ethos Group Inc.’s 21 ||second motions to dismiss. See Doc. No. 30. As such, the Court ORDERS the 22 || following regarding the remaining Defendants: 23 1. Ford shall file an answer to the surviving claims against it in the First 24 Amended Complaint, Doc. No. 22, no later than June 20, 2023. 25 2. Norm Reeves shall file a response to the First Amended Complaint, Doc. 26 No. 22, no later than June 20, 2023. 27 IT IS SO ORDERED. Fe 28 ||Dated: June 6, 2023 LMudkub la - (clips United States District Judge