The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DENYING DEFENDANT EDWARD HENNESSEY'S MOTION TO DISMISS
In this breach of contract action, Defendant Edward Hennessey moves to dismiss the complaint pursuant to Rule 4(m) and Rule 41(b) of the Federal Rules of Civil Procedure. Specifically, Defendant asserts Plaintiff did not complete service within 120 days of the filing of the complaint and Plaintiff has willfully failed to prosecute the action. Having considered the parties' submissions, the Court DENIES Defendant's motion for the following reasons.
On June 24, 1999, the parties entered into a written contract, whereby Plaintiff agreed to purchase from Defendant 50% of Chesterfield Capital Group, L.L.C., a Missouri limited liability company. On July 23, 2003, Plaintiff filed a complaint seeking (1) rescission of the contract based on fraud; (2) rescission of the contract based on failure of consideration; (3) exemplary and punitive damages for fraud; (4) damages for breach of contract; and (5) relief under a common count for money had and received. (Doc. No. 1.) On January 26, 2004, the Court granted Plaintiff's motion for service by publication of summons.
On October 18, 2004, Plaintiff filed a proof of service by publication, having published the summons six times for six successive weeks in the Riverfront Times, a Missouri periodical. (Doc. No. 10.) Based on this service, and the ensuing failure of Defendants to appear, the Court granted default judgment in favor of Plaintiff on July 15, 2005. (Doc. No. 25.)
On April 30, 2009, upon Defendant's motion, the Court set aside default judgment as void because publication in the Riverfront Times, a free newspaper with no subscription list, does not satisfy California's service by publication requirements, rendering service defective. (Doc. No. 33.) On June 2, 2009, Plaintiff filed an executed alias summons, which had been served on Defendant on May 21, 2009. (Doc. No. 36.)
On June 10, 2009, Defendant filed the instant motion, seeking to dismiss the action for lack of prosecution. (Doc. No. 37.) Plaintiff filed an opposition and Defendant filed a reply. This matter is amenable to disposition without oral argument pursuant to Local Civil Rule 7.1(d).
Rule 41(b) permits a defendant to move for dismissal of the action if "the plaintiff fails to prosecute or comply with" the Rules. Fed. R. Civ. P. 41(b). When considering a Rule 41(b) motion, a court must consider five 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 drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.