Shen v. LaCour

Opinion

UNITED STATES DISTRICT COURT 1 DISTRICT OF NEVADA 2 *** 3 TSAI-LU SHEN, 4 Plaintiff, 2:19-cv-01564-JAD-VCF 5 vs.

6 MICHELLE LACOUR, ORDER 7 Defendant. THIRD MOTION TO EXTEND TIME (ECF NO. 70) 8

9 Before the Court is plaintiff Tsai-Lu Shen’s third motion to extend time to serve process upon 10 defendant Michelle LaCour Pursuant to FRCP 4(m). (ECF No. 70). The motion is granted. 11 I. Background 12 13 On July 3, 2019, plaintiff Tsai-Lu Shen filed a complaint in the Eighth Judicial District Court of 14 the State of Nevada for Clark County, Case No. A-19-797897-B. (ECF No. 1 at 7). On September 9, 15 2019, defendant Michelle LaCour filed a notice of removal to this Court. (Id. at 1). The Court granted 16 plaintiff multiple extensions to serve the defendant: he now has until Wednesday, October 14, 2020. 17 (ECF No. 61). 18 Plaintiff argues in his motion to extend time that he has been unable to serve defendant with a 19 summons and a copy of the complaint. (ECF No. 70 at 3). Plaintiff also argues that there is a possibility 20 that he will not be able to complete service by publication by October 14, 2020. (Id.) The Court granted 21 plaintiff’s motion to serve defendant by publication shortly after plaintiff filed the motion for the 22 extension of time. (ECF No. 71). Defendant Michelle LaCour did not respond to the motion. 23 II. Analysis 24 “A federal court does not have jurisdiction over a defendant unless the defendant has been 25 1 served properly under Fed. R. Civ. P. 4.” Direct Mail Specialists, Inc. v. Eclat Computerized Techs.,

5 Inc., 840 F.2d 685, 686 (9th Cir. 1988). District courts retain broad discretion to permit service-of-

3 || Process extensions under Rule 4(m). See Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). 4 || Regarding extensions, “a district court may consider factors ‘like statute of limitations bar, prejudice to 5 || the defendant, actual notice of a lawsuit, and eventual service.’” Efaw v. Williams, 473 F.3d 1038, 1041 6 || (9th Cir.2007) (quoting Troxell v. Fedders of N. Am. Inc., 160 F.3d 381, 383 (7th Cir.1998)). “The 7 || failure of an opposing party to file points and authorities in response to any motion, except a motion 8 || under Fed. R. Civ. P. 56 or a motion for attorney’s fees, constitutes a consent to the granting of the 7 motion.” Local Rule 7-2(d). The Court exercises its discretion to extend Shen’s time to serve LaCour. The factors advising an extension of time to complete service weigh in his favor. This Court has previously found that LaCour has actual notice of the lawsuit. Shen is also in the process of serving LaCour via publication,

4 so LaCour is likely to be served imminently. Shen has made a good cause showing that he needs

15 additional time to serve LaCour. The defendant’s failure to file points and authorities in response to

|| Shen’s motion for an extension of time also constitutes LaCour’s consent to the granting of the motion. 17 ACCORDINGLY, 18 IT IS ORDERED that plaintiff Tsai-Lu Shen’s motion to extend time to serve defendant 19 || Michelle LaCour (ECF No. 70) is GRANTED: the time for plaintiff Tsai-Lu Shen to serve the defendant 20 || is extended to Tuesday, January 12, 2021. I IT IS SO ORDERED. 22 DATED this 29th day of September 2020.

24 CAMFERENBACH 0 UNITED STATES MAGISTRATE JUDGE