Mongkol Muay Thai Corporation v. JG (Thailand) Company Limited

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MONGKOL MUAY THAI Case No. 22-cv-0506-BAS-KSC CORPORATION, 12 ORDER Plaintiff, 13 1. GRANTING PLAINTIFF’S v. AMENDED EX PARTE 14 MOTION TO EXTEND TIME JG (THAILAND) COMPANY LIMITED, 15 TO SERVE (ECF No. 29), and Defendant. 2. DENYING PLAINTIFF’S EX 16 PARTE MOTION TO EXTEND 17 TIME TO SERVE (ECF No. 28)

19 Before the Court is Plaintiff Mongkol Muay Thai Corporation’s (“Plaintiff” or 20 “Mongkol”) Ex Parte Application for an Order Extending Time to Serve Defendant. (ECF 21 No. 29.) Plaintiff initiated this action in April of 2023—almost a year ago—and the Clerk 22 of Court issued a summons the same day. (ECF Nos. 1, 2.) 23 Under Federal Rule of Civil Procedure (“Rule”) 4(h)(2), if a corporation is served 24 outside any judicial district of the United States, it must be served “in any manner 25 prescribed by Rule 4(f) for serving an individual, except under (f)(2)(C)(i).” Rule 4(f) 26 permits service on an individual, other than a minor, an incompetent person, or a person 27 whose waiver has been filed, at a place not within any judicial district of the United States, 28 by one of three means. See Rule 4(f)(1)–(3). Under Rule 4(f)(3), this Court previously 1 ordered Plaintiff to complete service of process via email by no later than September 6, 2 2023. (ECF No. 22.) The same day as the publication of the Order, Plaintiff’s counsel 3 served Defendant via email with its complaint but not the summons. (ECF No. 23.) 4 For a court to exercise power over a party the complaint names as defendant, the 5 plaintiff must complete service of process, which requires service of the summons as well 6 as the complaint. See Rule 4(c)(1); see also Murphy Bros. v. Michetti Pipe Stringing, Inc., 7 526 U.S. 344, 350 (1999). A named defendant is not required to take action as a defendant 8 until “service of a summons or other authority-asserting measure stating the time within 9 which the party served must appear and defend.” 526 U.S. at 350. Here, Plaintiff’s original 10 attempt at service of process failed because Plaintiff served Defendant with only the 11 complaint and not the summons, thus failing to bring Defendant to the action. (ECF No. 12 23.) 13 Now, nearly six months after the expiration of this Court’s deadline for service of 14 process and after a change of counsel, Mongkol requests an additional extension to 15 complete service of process by email, as was required by this Court’s Order and Rule 4(f). 16 (ECF Nos. 22, 29.) 17 Upon considering Mongkol’s ex parte application and the relevant four-factor 18 equitable test, the Court finds Plaintiff failed to timely act due to its counsel’s excusable 19 neglect. See Rule 6(b); see also Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 20 (9th Cir. 2010) (enumerating the four-factor equitable test for determining excusable 21 neglect); see also Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 392 22 (1993) (“[I]t is clear that ‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic 23 concept’ and is not limited strictly to omissions caused by circumstances beyond the 24 control of the movant.”). Thus, the Court retroactively extends the time period for Plaintiff 25 to file proof of service of both the complaint and the summons. However, considering the 26 speed and ease of electronic mail, the Court will not grant Plaintiff’s request to extend the 27 deadline to May 1, 2024. 28 l Instead, the Court hereby GRANTS IN PART and DENIES IN PART Mongkol’s 2 Amended Ex Parte Motion for Extension of Time to Serve Defendant and ORDERS 3 ||Mongkol to file proof of service of the summons and the complaint by no later than 4 ||March 8, 2024. (ECF No. 29.) Mongkol’s original Ex Parte Motion for Extension of 5 || Time is hereby DENIED as moot. (ECF No. 28.) 6 7 IT IS SO ORDERED. 8 A , 9 || DATED: March 4, 2024 Lin A (Lyohaa 6 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 48