1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JENNIFER BURNLEY, individually and Case No.: 23-CV-2037 JLS (BLM) on behalf of others similarly situated, 12 ORDER REGARDING PLAINTIFF’S

RESPONSE TO THE COURT’S

13 Plaintiff,

DECEMBER 11, 2023 ORDER TO

14 v. SHOW CAUSE

15 MIDLAND CAPITAL MANAGEMENT, (ECF No. 17)

INC.,

16

17 Defendant. 18 19 On December 11, 2023, this Court ordered Plaintiff Jennifer Burnley to show cause 20 why this action should not be dismissed for failure to timely effect service in accordance 21 with Federal Rule of Civil Procedure 4(m). See ECF No. 16 (“OSC”). Presently before 22 the Court is Plaintiff’s Response to the OSC (“Resp.,” ECF No. 17). Plaintiff explains that 23 she believed she had additional time to complete service because this case—though 24 initiated on August 30, 2023, see ECF No. 1—was not transferred to this District until 25 November 3, Resp. at 1. Plaintiff also “did not believe it was proper to serve Defendant” 26 Midland Capital Management, Inc., “until the case was accepted in the Southern District 27 and she could obtain a summons.” Id. Plaintiff admits that she “inadvertently did not 28 request a summons to effect service on Defendant.” Id. 1 Pursuant to Rule 4(m), if a plaintiff “shows good cause for the failure” to effect 2 service, “the court must extend the time for service for an appropriate period.” 3 Fed. R. Civ. P. 4(m). “Additionally, the rule permits the district court to grant an extension 4 even in the absence of good cause.” Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007) 5 (emphasis omitted). In determining whether to grant an extension under Rule 4(m), the 6 Court “looks to: (1) the length of the delay; (2) the reason for the delay; (3) any prejudice 7 to [d]efendants because of the delay; and (4) any prejudice to Plaintiff if the case were to 8 be dismissed.” James v. Cnty. of Sacramento, No. 2:18-CV-00180-TLN-DB, 9 2022 WL 2533484, at *4 (E.D. Cal. July 7, 2022) (citing Efaw, 473 F.3d at 1041). 10 On balance, the above factors weigh in favor of granting Plaintiff an extension. The 11 first militates in Plaintiff’s favor, as she requests only a short extension. See Resp. at 2. 12 But the second weighs against her; “inadvertence of counsel” generally “does not qualify 13 as good cause” for failure to comply with Rule 4’s requirements. See Wei v. Hawaii, 14 763 F.2d 370, 372 (9th Cir. 1985). That said, the Court notes Plaintiff’s prompt response 15 to the OSC and the potential confusion caused by this case’s transfer. The remaining two 16 factors both favor Plaintiff. The Court sees little to suggest that a brief extension risks 17 prejudice to Defendant. On the other hand, dismissing the case would prejudice Plaintiff 18 because the statute of limitations has run on her claims. See Resp. at 2; Efaw, 473 F.3d 19 at 1041 (“[A] district court may consider factors ‘like a statute of limitations bar . . . .’” 20 (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998)). 21 Good cause appearing, the Court GRANTS Plaintiff’s request for an extension of 22 time to effect service. Plaintiff SHALL SERVE Defendant by January 8, 2024, and 23 SHALL FILE proof of service promptly. Should Plaintiff comply with this Order, the 24 OSC will be discharged without further action from this Court. Should Plaintiff fail to 25 / / / 26 / / / 27 / / / 28 / / / 1 ||serve Defendant within the allotted time, the Court will dismiss this action without 2 || prejudice for failure to timely effect service. 3 IT IS SO ORDERED. 4 ||Dated: December 15, 2023 , tt 5 ja Janis L. Sammartino ‘ 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