The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO DISMISS UNDER RULE 41; GRANTING MOTION TO DISMISS UNDER RULE 4(M)
Defendants County of Imperial, Sheriff Harold D. Carter, Deputy J. Gonzalez, and Deputy J. Cabanillas (collectively "Defendants") move to dismiss the complaint for lack of prosecution pursuant to Rule 41(b); and defendants Carter and Gonzalez move to dismiss the complaint for defects in service of process pursuant to Rule 12(b)(5). Plaintiff Cynthia Christine Bloomfield opposes both motions. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the court denies the motion to dismiss for lack of prosecution and grants defendants Gonzalez and Carter's motion to dismiss the action without prejudice for failure to timely effectuate service of process.
On June 28, 2006, Plaintiff commenced this federal question action seeking to impose liability on Defendants pursuant to the Civil Rights Act, 42 U.S.C. §1983. Plaintiff generally alleges that Imperial County Sheriff Deputy J. Gonzalez ("Gonzalez") was dispatched to her home in response to a domestic disturbance. (Compl. ¶15). While "[i]n route to plaintiff's home, Deputy J. Gonzalez was informed by dispatch that plaintiff had a[n outstanding] warrant for her arrest." (Compl. ¶16). Upon arrival at the scene, Plaintiff informed the officers that her husband had left the residence. Plaintiff was then placed under arrest wherein defendants Cabanillas and Gonzalez allegedly "used excessive and unreasonable force in inflicting injuries" to Plaintiff, including a fractured left knee. (Compl. ¶18, 19). Based upon this generally described conduct, Plaintiff alleges two federal claims for excessive force and failure to train and three state law claims for battery, intentional infliction of emotional distress, and negligence.
Counsel for Plaintiff, initially represented by the Pacific Law Center until relieved as counsel of record on July 16, 2007, took no action to serve the summons and complaint on Defendants. On December 19, 2006, the Court issued an order to show cause notifying Plaintiff that the case would be dismissed at or after a January 16, 2007, order to show cause hearing, unless Plaintiff showed proof that Defendants had been served or good cause for failure to serve process on Defendants within the time prescribed by FED. R. CIV. P. 4(m). (Doc. # 2).
On January 16, 2007, attorney C. Colin Cossio, without having filed a substitution of counsel, appeared at the order to show cause hearing and indicated that he would be representing Plaintiff in this matter in lieu of attorney John Bell. At the hearing, the court ordered Plaintiff to serve Defendants on or before February 15, 2007. (Doc. # 3). Plaintiff did not serve Defendants on or before February 15, 2007 as ordered, and did not notify the court of her failure to comply with the Court's order of January 16, 2007. Accordingly, on May 2, 2007, the court issued a second order to show cause notifying Plaintiff that it would dismiss this case without prejudice on or after June 4, 2007, unless Plaintiff filed either (1) proof that service of the summons and complaint were timely effectuated, or (2) a declaration under penalty of perjury showing good cause for failure to timely serve Defendants with the summons and complaint as required by this court's order of January 16, 2007, and FED. R. CIV. P. 4(m). (Doc. # 4).
Once again, Plaintiff did not comply with the court's order. On June 4, 2007, Cossio filed a declaration indicating that he received notice of the second order to show cause the week of Monday, May 28, 2007, and that he had been unable to contact attorney Bell at the Pacific Law Center, the counsel of record, to execute a substitution of attorney. (Doc. # 5). Cossio also indicated that service of process has not yet been effectuated upon Defendants. (Doc. # 5).
On June 8, 2007, the court granted Plaintiff an additional extension of time to serve Defendants. (Doc. # 7). However, the court noted that the complaint would be dismissed if Plaintiff failed to "file a notice of substitution of counsel and proof of service for each Defendant on or before July 9, 2007." (Doc. # 7). On July 9, 2007, Plaintiff filed a certificate of service with respect to defendants County of Imperial and Deputy J. Cabanillas. (Doc. # 9). However, Plaintiff failed to file a proof of service for defendants Deputy J. Gonzalez and Sheriff Harold D. Carter. Cossio indicated in a declaration that his process server was unable to serve Gonzales because Gonzales was "on vacation." (Doc. # 9 at 2). Cossio further indicated that his process server was unable to serve Carter because Carter was no longer Sheriff of Imperial County. (Doc. # 9 at 2). On July 16, 2007, more than six months after ordered to file a substitution of counsel, the court granted attorney Cossio's motion for substitution of counsel.
On August 29, 2007, Defendants filed the pending motion to dismiss for defects in service of process and lack of prosecution. (Doc. # 13). Plaintiff still has not effectuated service on defendants Carter and Gonzalez.
Defendants move to dismiss the complaint on two grounds. First, Defendants contend that the entire Complaint should be dismissed against all Defendants pursuant to FED. R. CIV. P. 41(b) because Plaintiff has repeatedly failed to prosecute this action and delayed these proceedings to Defendants' detriment. Second, Defendants Gonzalez and Carter contend that the complaint should be dismissed with respect to them because they have yet to be served with the summons and complaint in violation of FED. R. CIV. P. 4(m) and previous orders of this court. Each motion is discussed in turn.
FED. R. CIV. P. 41(b) provides that, "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against the defendant." "In determining whether to dismiss a claim for failure to prosecute or failure to comply with a court order, the Court must weigh the following factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less ...