1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALLAN FAMILY TRUST, Case No.: 21-cv-2049-JO

12 Plaintiff,

ORDER DISMISSING CASE

13 v. WITHOUT PREJUDICE 14 CITY OF SAN DIEGO, CALIFORNIA

DEPARTMENT OF

15 TRANSPORTATION (CALTRANS), and 16 DOES 1-50, 17 Defendants. 18 19

20 On June 22, 2022, the Court ordered Plaintiff to show cause why this case should 21 not be dismissed for failure to timely serve Defendants. In response, Plaintiff filed a 22 declaration from its attorney on July 12, 2022. For the reasons stated below, the Court 23 declines to extend the time for Plaintiff to effect service and dismisses this case without 24 prejudice pursuant to Federal Rule of Civil Procedure 4(m). 25 I. BACKGROUND 26 Plaintiff filed its Complaint in this case on December 8, 2021. Dkt. 1. On the same 27 day, the Clerk of the Court issued the summons. Dkt. 2. The docket entry issuing the 28 summons contained the following instructions for service: “Counsel receiving this notice 1 electronically should print this summons and serve it in accordance with Rule 4, Fed. R. 2 Civ. P. and L.R. 4.1.” Id. Pursuant to Federal Rule of Civil Procedure 4(m), Plaintiff had 3 until March 8, 2022—90 days from December 8, 2021—to serve Defendants in this case. 4 Plaintiff failed to do so; instead, it filed an Amended Complaint on April 11, 2022. Dkt. 5. 5 On June 22, 2022, the Court issued an Order to Show Cause why the case should not be 6 dismissed for failure to timely serve Defendants under Federal Rule of Civil Procedure 4. 7 Dkt. 6. On July 10, 2022, the 90-day period after the filing of the Amended Complaint 8 expired. 9 On July 12, 2022, Plaintiff responded to the Order to Show Cause by filing the sworn 10 declaration of one of its two counsel of record. Dkt. 8. In this declaration, Plaintiff’s 11 counsel acknowledged that he did not serve the original complaint but contended that the 12 failure was justified. He pointed to California Code of Civil Procedure section 583.210(a)– 13 (b), which permits service of the complaint within three years of filing, and explained that 14 he believed this state statute controlled the time for service in this case. Dkt. 8 at ¶ 12. 15 Plaintiff provided no other reason for failing to serve its original Complaint within 90 days. 16 Plaintiff also provided no explanation for failing to serve its Amended Complaint within 17 90 days. To date, Plaintiff has served neither the original Complaint nor the Amended 18 Complaint. 19 II. LEGAL STANDARD 20 Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve the complaint 21 within 90 days of filing. If a plaintiff fails to do so, the Court must dismiss the case without 22 prejudice “unless the Court finds good cause for an extension of time.” Fed. R. Civ. 23 P. 4(m). In the Ninth Circuit, “[a]t a minimum, ‘good cause’ means excusable neglect.” 24 In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001) (quoting Boudette v. Barnette, 923 F.2d 25 754, 756 (9th Cir. 1991)). Courts have interpreted “good cause” to mean that “service has 26 been attempted but not completed, that plaintiff was confused about the requirements of 27 service, or that plaintiff was prevented from serving defendants by factors beyond his 28 control.” AF Holdings LLC v. Does 1-135, 2012 WL 1038671, at *3 (N.D. Cal. Mar. 27, 1 2012) (citation omitted). An attorney’s mistake or ignorance of the rules governing time 2 limits, however, does not constitute good cause or excusable neglect. See Townsel v. Cnty. 3 of Contra Costa, 820 F.2d 319, 320 (9th Cir. 1987) (“[t]o hold that complete ignorance of 4 [Rule 4] constitutes good cause for untimely service would allow the good cause exception 5 to swallow the rule”); Wei v. Hawaii, 763 F.3d 370, 372 (9th Cir. 1985) (“[counsel’s] 6 inadvertence . . . does not qualify as good cause”); see also Whale v. United States, 792 7 F.2d 951, 953 (9th Cir. 1986) (“We know of no cases in which counsel’s failure to read 8 Rule 4 . . . constitute[d] ‘good cause’ or ‘justifiable excuse.’”). 9 Where a plaintiff’s failure to timely serve is not justified by good cause, courts still 10 have discretion “to extend the time for service or to dismiss the action without prejudice.” 11 In re Sheehan, 253 F.3d at 513. In those instances, the Ninth Circuit has noted that “a 12 district court may consider factors like a statute of limitations bar, prejudice to the 13 defendant, actual notice of a lawsuit, and eventual service.” Efaw v. Williams, 473 F.3d 14 1038, 1041 (9th Cir. 2007) (internal quotation marks omitted). 15 III. DISCUSSION 16 A. Good Cause Does Not Exist to Extend Time to Serve 17 Here, Plaintiff failed to provide good cause for failing to serve within the time 18 required by Federal Rule of Civil Procedure 4(m). Plaintiff’s counsel explains that he 19 failed to serve the original complaint within 90 days because he erroneously believed that 20 California Code of Civil Procedure section 583.210(a)–(b) permitted service within three 21 years of filing. Dkt. 8 at ¶ 12. Counsel’s mistake regarding the applicability of state, rather 22 than federal, time frames for service does not constitute excusable neglect. See Townsel, 23 820 F.2d at 320 (finding that attorney’s ignorance of Rule 4 was not excusable neglect); 24 Wei, 763 F.2d at 372 (finding that attorney’s inadvertent failure to meet deadline did not 25 constitute good cause). Accordingly, the Court declines to extend the time for Plaintiff to 26 effect service under Rule 4(m). 27 /// 28 /// 1 B. The Record Does Not Support a Discretionary Extension of Time to Serve 2 In the absence of good cause under Rule 4(m), the Court turns to whether it should 3 exercise its discretion to grant an extension of time. As suggested by the Ninth Circuit, 4 this Court will consider factors such as the statute of limitations, prejudice to Defendants, 5 notice of the lawsuit, and eventual service. See Efaw, 473 F.3d at 1041. First, Plaintiff 6 never effected service on Defendants, timely or otherwise. Despite being informed by 7 docket entry that it must serve Defendants under Rule 4, Plaintiff did not serve the original 8 complaint within the 90-day period. Dkt. 2. The Court issued its Order to Show Cause 9 further alerting Plaintiff to federal service requirements on June 22, 2022, that is, 73 days 10 after Plaintiff filed its Amended Complaint. Dkts. 6, 8 at ¶ 11. Even after receiving this 11 notice, Plaintiff did not take steps to serve its Amended Complaint within the 90-day 12 period. To date, Plaintiff still has not effected service, and Plaintiff has not informed the 13 Court that it ever attempted service on Defendants. Nothing in the record, therefore, 14 supports a conclusion that Defendants are aware of the claims in this case. And aside from 15 Plaintiff’s counsel’s conclusory declaration, see Dkt. 8 at ¶ 15, the Court has no basis to 16 find that Defendants would not suffer prejudice if it granted an extension. 17 Plaintiff argues that, without an extension, it will “suffer severe prejudice and 18 irreparable harm because it would be denied its day in court.” Id. at ¶ 13. The Court finds 19 that Plaintiff has not provided support for this contention. Plaintiff does not explain why 20 it cannot pursue its inverse condemnation and other claims in state court. Nor does Plaintiff 21 argue that the statute of limitations would bar its claims unless the Court grants this 22 extension. The Court notes that most of the Amended Complaint’s allegations focus on 23 harms that occurred before 2005. From the pleading alone, it is unclear whether the statute 24 of limitations would bar Plaintiff’s claims, regardless of whether the Court granted this 25 extension. On this record, the Court does not have sufficient information to find that denial 26 of an extension would result in prejudice to Plaintiff because of the statute of limitations 27 or otherwise. 28 1 For the above reasons, the Court denies Plaintiff's request to grant an extension of 2 || time for service under Rule 4(m) and declines to exercise its discretion to do so. The Court 3 || orders the case DISMISSED without prejudice. The Court directs the Clerk to CLOSE the 4 || case. 5 IT IS SO ORDERED. 6 || Dated: October 13, 2022 ph 7 Hon Jinsook Ohta United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28