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Michael Pearson, Cdcr #T-15673; Jermaine v. State of California; Matthew Cate; Domingo Uribe

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 14, 2011

MICHAEL PEARSON, CDCR #T-15673; JERMAINE PINA, CDCR #K-04452; RAYMOND SCOTT, CDCR #K-17569, ORDER GRANTING EXTENSION OF TIME TO EFFECT SERVICE PLAINTIFFS,
v.
STATE OF CALIFORNIA; MATTHEW CATE; DOMINGO URIBE, JR.; KEN PHILLIPS; HANEEF SALAAM , DEFENDANTS.

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

[Doc. No. 20]

On February 9, 2011, Plaintiffs Michael Pearson, Jermaine Pina, and Raymond Scott ("Plaintiffs"), state prisoners proceeding pro se, filed a request for an extension of time to serve Defendants Matthew Cate, Domingo Uribe, Jr., Ken Phillips, and Haneef Salaam ("Defendants"). [Doc. No. 20.] For the reasons stated herein, the Court GRANTS Plaintiffs' request.

Plaintiffs filed their complaint on August 6, 2010, and paid in full the filing fee mandated by 28 U.S.C. § 1914(a). [Id.] Under Federal Rule of Civil Procedure 4(m), Plaintiffs were required to serve Defendants within 120 days after the Complaint was filed, by December 6, 2010. On December 6, 2010, Plaintiff filed proofs of service as to Defendants Domingo Uribe, Ken Phillips, and Haneef Salaam; the summons was returned unexecuted as to Matthew Cate. [Doc. Nos. 13-16.] On January 13, 2011, the Court determined service was not properly completed as to all Defendants. [Doc. No. 19.]

Plaintiffs filed the instant motion to extend time to serve Defendants, requesting an additional thirty days. Plaintiffs contend good cause exists to grant an extension because although Plaintiffs paid the initial filing fee, they no longer have the financial resources to serve Defendants. Plaintiffs argue that if the Court grants an extension of time, it will allow Plaintiffs to prepare and file a motion to proceed in forma pauperis, such that the Court can consider issuing an order directing the U.S. Marshall to effectuate service. [Doc. No. 24.]

Courts deny as moot motions to proceed in forma pauperis ("IFP")where the filing fee is subsequently paid. See Lipscomb v. Madigan, 221 F.2d 798 (9th Cir.1955); see also Escobar v. Clark, 2007 WL 1100307 *1 (N.D.Cal. 2007). Thus, to the extent Plaintiffs base the present motion on their stated intention to file a motion to proceed IFP, the Court finds extension on such grounds is not warranted.

Nonetheless, due to Plaintiffs' incarcerated status and their limited access to resources, the Court finds good cause to grant to extend Plaintiffs' time to effect service. Accordingly, the Court GRANTS Plaintiffs' request. Plaintiffs shall serve Defendants on or before March 16, 2011. The Court cautions Plaintiffs that no further requests for extensions of time shall be granted absent demonstration of good cause such as proof of diligent efforts to serve Defendants.

IT IS SO ORDERED.

20110214

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