Raiser v. Casserly

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AARON RAISER, Case No.: 18-CV-1836 JLS (AHG)

12 Plaintiff, ORDER (1) DENYING REQUEST 13 v. FOR SERVICE BY A UNITED STATES MARSHAL, AND 14 HON. TIMOTHY CASSERLY, et al., (2) GRANTING MOTION FOR 15 Defendants. EXTENSION OF TIME TO SERVE DEFENDANTS 16

17 (ECF Nos. 59, 60)

18 19 Presently before the Court is Plaintiff’s Motion for Extension of Time to Serve 20 Summons and Complaint and Application for Service by a United States Marshal (ECF 21 No. 59), and Plaintiff’s Emergency Ex Parte Application for Extension of Time to Serve 22 Summons and Complaint and for U.S. Marshal Service (ECF No. 60).1 23 First, Plaintiff requests the Court order a United States marshal to serve Defendants 24 Chief Justice Tani G. Cantil-Sakauye, Administrative Presiding Justice Judith McConnell, 25 and Associate Justices Patricia D. Benke, Richard D. Huffman, and Terry B. O’Rourke 26 27 28 1 Because Plaintiff seeks the same relief in both motions, the Court DENIES AS MOOT Plaintiff’s Ex 1 (together, the “Judicial Defendants”). Plaintiff asserts he is unable to serve the Judicial 2 Defendants because he has been suffering from health issues and the cost of service has 3 become prohibitive. 4 Under Federal Rule of Civil Procedure 4(c)(3), the Court may, at the plaintiff’s 5 request, “order that service be made by a United States marshal or deputy marshal or by a 6 person specially appointed by the court.” “If the plaintiff is not proceeding in forma 7 pauperis or as a seaman,” as is the case here, “the decision” of whether to direct service by 8 a United States marshal “falls within the discretion of the court.” Bax v. Exec. Office for 9 U.S. Attorneys, 216 F.R.D. 4, 4 (D.D.C. 2003). Before exercising this discretion, however, 10 the Court should require “that a plaintiff requesting service by the United States Marshal 11 first must attempt service by some other means authorized by Rule 4.” Id. (citing Jones v. 12 Goodman, No. CIV. A. 91-7560, 1992 WL 185634, at *1 (E.D. Pa. July 21, 1992); Wright 13 & Miller, 4A Fed. Prac. & Proc. Civ. § 1090 (4th ed.)). 14 Here, Plaintiff “has not attempted service by other means,” id. at 4–5, such as 15 requesting waiver of service under Rule 4(d). The Court therefore DENIES WITHOUT 16 PREJUDICE Plaintiff’s request for service by a United States marshal (ECF No. 59). 17 Second, Plaintiff requests the Court extend the time for him to serve the Judicial 18 Defendants. The Court previously granted Plaintiff until March 6, 2020, to serve the 19 Judicial Defendants. Plaintiff asserts he cannot meet that deadline because of his declining 20 health and the cost of service. So that Plaintiff may attempt service by other means, the 21 Court GRANTS Plaintiff’s Motion (ECF No. 59) as it pertains to extending time for 22 service. Plaintiff SHALL SERVE the Judicial Defendants and file appropriate proof of 23 service with the Court by May 7, 2020. “If [Plaintiff] demonstrates to the court’s 24 satisfaction that he is unable to serve the [Judicial Defendants] with the complaint and 25 summons through other authorized means, [Plaintiff] may re-file his motion for service by 26 the United States Marshal.” Bax, 216 F.R.D. at 5. Failure to properly serve Defendants 27 /// 28 /// 1 this time may result in this case being dismissed pursuant to Federal Rule of Civil 2 || Procedure 4(m). 3 IT IS SO ORDERED. 4 Dated: March 5, 2020 tt 5 jen Janis L. Sammartino 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28