Nocita v. Krohn

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 Jacob Nocita, Case No. 3:22-cv-5741-TLF 7 Plaintiff, v. ORDER GRANTING DEFENDANT 8 JEREMY MITCHELL’S MOTION Andrea Leal, TO DISMISS (DKT. 71) 9 Defendants. 10

11 This matter comes before the Court on Defendant Jeremy Mitchell’s motion to 12 dismiss Plaintiffs’ claims against him under Federal Rule of Civil Procedure (Fed. R. 13 Civ. P.) 4(m) and Fed. R. Civ. P 12(b)(5). After reviewing Defendant’s motion to dismiss 14 and the remaining record, the Court finds that Plaintiffs failed to serve Defendant 15 Mitchell; therefore, Defendant’s motion to dismiss is GRANTED. Defendant Mitchell is 16 dismissed from this matter without prejudice. 17 DISCUSSION 18 A court cannot exercise personal jurisdiction over a defendant unless a plaintiff 19 has substantially complied with the service requirements of Federal Rule of Civil 20 Procedure 4. Direct Mail Specialists, Inc. v. Eclat Computerized Tech., 840 F.2d 685, 21 688 (9th Cir. 1988). A motion for insufficient service of process may be brought under 22 Fed. R. Civ. P. 12(b)(5). 23 Pursuant to Rule 4(m), “[i]f a defendant is not served within 90 days after the 24 complaint is filed, the court on motion or on its own after notice to the plaintiff must 1 dismiss the action without prejudice against that defendant or order that service be 2 made within a specified time. But if the plaintiff shows good cause for the failure, the 3 court must extend the time for service for an appropriate period.” Plaintiff may show 4 good cause where she “was prevented from serving a defendant because of events

5 outside of [her] control” or due to a defendant’s efforts to evade service. Zoosk, Inc. v. 6 Dyle, 2011 WL 635279, at *2 (N.D. Cal. Feb. 11, 2011) (citing Wei v. State of Hawaii, 7 763 F.2d 370, 372 (9th Cir. 1985)). 8 Under Rule 4(c)(1), the “plaintiff is responsible for having the summons and 9 complaint served within the time allowed by Rule 4(m) and must furnish the necessary 10 copies to the person who makes service.” Fed. R. Civ. P. 4(j). Otherwise, the plaintiff 11 may opt to notify a defendant that an action has been commenced against them and 12 request they waive service of summons. Fed. R. Civ. P Rule 4(d). 13 Unless the plaintiff obtains a waiver pursuant to Rule 4(d), “proof of service must 14 be made to the court.” Fed. R. Civ. P 4(l). If a plaintiff does not obtain and file a waiver,

15 service must be accomplished by (1) serving the summons and pleading to the 16 individual personally; (2) leaving a copy at the individual’s usual residence with 17 someone of suitable age and discretion who resides there; or (3) delivering a copy “to 18 an agent authorized by appointment or by law to receive service of process.” Fed. R. 19 Civ. P. 4.1(d). 20 Here, Plaintiffs initiated their action on October 3, 2022. Dkt. 1-1. Defendant 21 Mitchell was identified as a defendant then, and again on November 28, 2022, when 22 Plaintiffs filed their amended complaint. Dkt. 8. Plaintiffs’ applications to proceed in 23 forma pauperis were not granted until January 25, 2023. Dkt. 28.

24 1 Plaintiffs successfully obtained waivers of service of other defendants in this 2 matter. Dkts. 9-11, 20-22, 25, 34-37. Plaintiffs, however, did not obtain a waiver of 3 service from Defendant Mitchell or file proof of service with the Court. To date, 4 Defendant Mitchell has not been served. Dkt. 64, Declaration of Miles Russell, at ¶3.

5 Plaintiffs filed a response to Defendant Mitchell’s motion. Dkt. 74. Plaintiff’s did 6 not provide any facts to show good cause under Rule 4(m). Plaintiffs have also not 7 requested an extension of time to serve Defendant Mitchell even though Defendant 8 Mitchell’s counsel highlighted the service deficiency on February 6, 2023. Dkt. 39. 9 Based on the record before the Court, Plaintiffs have not shown good cause for their 10 failure to serve Defendant Mitchell. 11 Even without a showing of good cause, district courts have broad 12 discretion to extend the time for service. Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 13 2007). In making extension decisions under Rule 4(m), a district court may consider 14 factors like a statute of limitations bar, prejudice to the defendant, actual notice of a

15 lawsuit, and eventual service. Id. Here, more than seven months have passed since 16 Plaintiffs’ applications to proceed in forma pauperis were granted. Plaintiffs have not 17 made efforts to serve Defendant Mitchell. The Court has considered the factors and 18 finds they weigh in favor of dismissing Defendant Mitchell, under Fed. R. Civ. P. 19 12(b)(5). 20 21 22 23

24 1 CONCLUSION 2 The time to serve expired and, as of the date of this Order, Defendant Mitchell 3 has not been served. Plaintiffs have not shown good cause for the failure to serve and 4 the Court declines to exercise its discretion to extend the time to serve. Accordingly, the

5 Court GRANTS Defendant Mitchell’s motion to dismiss. Defendant Mitchell is dismissed 6 from this action without prejudice. 7 Dated this 25th day of August, 2023. 8 9 10 A

11 Theresa L. Fricke United States Magistrate Judge 12 13 14

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