ORDER GRANTING DEFENDANTS' MOTION TO DISMISS ORDER FOR PLAINTIFFS TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR PLAINTIFFS' FAILURE TO SERVE DEFENDANT TOURNER (Document #21)
On September 1, 2009, Plaintiffs filed a complaint for damages pursuant to 42 U.S.C. § 1983. Plaintiffs allege that Defendants unreasonably seized them in violation of the Fourth and Fourteenth Amendments of the United States Constitution.
Defendant City of Fresno was served with the complaint on April 5, 2010, 216 days after the complaint was filed. On May 18, 2010, Plaintiffs served Defendants Dyer, Medina, Ovalle, and the Fresno Police Department.*fn1
On April 26, 2010, Defendant City of Fresno filed a motion to dismiss pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure because the complaint was not served within the 120 day time limit required by Rule 4(m) of the Federal Rules of Civil Procedure. On July 15, 2010, the court denied Defendant City of Fresno's motion. The court retroactively extended Rule 4(m)'s service period as to Defendant City of Fresno to April 5, 2010.
On June 4, 2010, Defendants filed a motion to dismiss. Defendants contend the complaint was not served on Defendants Dyer, Medina, Ovalle, and the Fresno Police Department as required by Rule 4(m). Defendants also contend that the complaint fails to state sufficient facts to sustain a Fourth Amendment claim for false arrest.
On July 1, 2010, Plaintiffs filed an opposition. Plaintiffs contend that Defendants' motion ignores the fact that Plaintiffs, prior to being identified as the attackers, advised Defendants they had not participated in the attack and were at another location. Plaintiffs argue that had Defendants investigated, no arrest would have occurred. On July 8, 2010, Plaintiffs field a supplemental opposition in which they provide cases where courts have found a lack of probable cause because an officer did not interview witnesses.
On July 12, 2010, Defendants filed a reply brief.
The court can dismiss a complaint for failure to comply with the service requirements of Rule 4 of the Federal Rules of Civil Procedure under Rule 12(b)(5) of the Federal Rules of Civil Procedure.
Rule 4(m) of the Federal Rules of Civil Procedure provides: If a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).
Rule 4(m) permits a district court to grant an extension of time to serve the complaint. Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). The court may even extend "time for service retroactively after the 120 day service period has expired." U.S. v. 2,164 Watches, More or Less Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 772 (9th Cir. 2004); Mann, 324 F.3d at 1090. If the plaintiff shows good cause for failing to service, the court is required to extend the time period. Lemoge v. U.S., 587 F.3d 1188, 1198 (9th Cir. 2009); Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007). If there is no good cause, the court has discretion to either dismiss the complaint without prejudice or to extend the time period to serve the complaint. Lemoge, 587 F.3d at 1198; Efaw, 473 F.3d at 1040. The court has broad discretion under Rule 4(m) to extend time for service even without a showing of good cause. Efaw, 473 F.3d at 1040; 2,164 Watches, 366 F.3d at 772. In making extension decisions under Rule 4(m) a district court may consider factors like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service. Scott v. Sebelius, 2010 WL 1972077, at *1 (9th Cir. 2010); Efaw, 473 F.3d at 1041.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedurea claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all of the complaint's material allegations of fact are taken as true, and the facts are construed in the light most favorable to the non-moving party. Marceau v. Balckfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004). However, the court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). As the Supreme Court has explained:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.
The plausibility standard is not akin to a 'probability requirement,' but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of 'entitlement to relief.' . . . Determining whether a complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the ...