UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
January 15, 2008
DAVID MEDNANSKY AND MARTINE MEDNANSKY, PLAINTIFFS,
U.S.D.A. FOREST SERVICE EMPLOYEES THOMAS F. GILLETTE, SUSAN DESONIA, SALLY D. GOODRICH, RICH TOBIN, TINA TERREL, AND 10 UNKNOWN U.S.D.A. FOREST SERVICE EMPLOYEES, AND THE UNITED STATES GOVERNMENT OF AMERICA, DEFENDANTS.
The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
DENYING IN PART EX PARTE APPLICATION FOR EXTENSION OF TIME IN WHICH TO SERVE ORDER GRANTING IN PART AND DEFENDANTS
Plaintiffs filed their complaint on August 8, 2007. Ordinarily, under Fed. R. Civ. P. 4(m), they would be required to serve Defendants within 120 days - i.e., December 4, 2007.*fn1 Rule 4(m) does, however, provide for an extension of time upon a showing of good cause. After the deadline, Plaintiffs, who are proceeding in pro per, sought an extension of time in which to serve the five named individual Defendants who are U.S. Forest Service employees. They submitted their ex parte application, which was accepted by discrepancy order for filing.
Plaintiffs explain that they had difficulty discovering the home addresses of certain U.S. Forest Service employees and stated they would be filing a motion to compel the Forest Service to provide the addresses. Plaintiffs have filed no such motion, however, nor have they provided any evidence of diligent efforts to locate these Defendants' addresses. Plaintiffs also stated the Forest Service's Office of General Counsel misinformed them about the General Counsel's legal ability to accept service of process for Forest Service employees served in their individual capacity. Plaintiffs state they did not realize their error in service until Defendants filed a motion to dismiss, in part because of defective service. Plaintiffs were successful in serving individual Defendants Gillett and DeSonia on December 6, 2007, but no others.
With their opposition to Plaintiffs' application, Defendants submit a declaration by Ritu Ahuja, an attorney in the U.S. Department of Agriculture's Office of General Counsel, stating an inquiry was made in the office and it appears at no time did Plaintiffs contact any attorney in the office.
The Court finds Plaintiffs have not shown good cause for extending the time to serve Defendants Goodrich, Tobin, or Terrel. There is no evidence they were intentionally or actively misled by Defendants or Defendants' counsel, or that they were even entitled to look to Defendants' counsel to advise them about service. Furthermore, there is no evidence they diligently sought to serve these Defendants. The fact that Plaintiffs are proceeding in pro per and misunderstood service requirements does not excuse their failure to timely serve these Defendants. Hamilton v. Endell, 981 F.2d 1062, 1065 (9th Cir. 1992) ("[I]gnorance of governing rules alone will not excuse a litigant's failure to effect timely service."); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986) ("Pro se litigants must follow the same rules of procedure that govern other litigants.")
On the other hand, Plaintiffs did manage to serve Defendants Gillett and DeSonia two days after the 120-day deadline had passed. The Court therefore finds they were reasonably diligent in attempting to serve these Defendants, and that their inability to locate these Defendants' home addresses suffices to show good cause for granting an extension of two days.
Plaintiffs' ex parte application is therefore DENIED as to Defendants Goodrich, Tobin, and Terrel, but GRANTED as to Defendants Gillett and DeSonia, both of whom have now been served.
IT IS SO ORDERED.