This matter came before the court on July 13, 2012, for Status (Pretrial Scheduling) Conference. Plaintiff Arnel Francisco, who is proceeding pro se in this action, appeared on his own behalf. No appearance was made by or on behalf of plaintiff Janeth Francisco or any defendant.*fn1
At the July 13, 2012 hearing the undersigned advised plaintiff Arnel Francisco that plaintiffs have filed no evidence that service of the summons and complaint was effected on any defendant and also noted that no defendant has appeared in the action. Plaintiff Arnel Francisco represented to the court that the plaintiffs had paid a process server to effect service on the defendants, believed that the process server had served each defendant and that each defendant would appear at the July 13, 2012 hearing. Moreover, plaintiff Arnel Francisco represented that the plaintiffs were in discussions with an attorney who they hoped to retain to represent them in this matter. Finally, plaintiff Arnel Francisco reported that if counsel was retained, he wished to file an amended complaint on behalf of the plaintiffs.
Federal Rule of Civil Procedure 4(m) requires a plaintiff to serve a defendant within 120 days after it files the complaint. A court must dismiss a case without prejudice if a plaintiff has not complied with this provision unless the plaintiff shows good cause for its failure to serve a defendant. Fed. R. Civ. P. 4(m). If good cause appears, the court must extend the time for service for an appropriate period. Id. Even without good cause, "[c]courts have discretion under Rule 4(m) . . . to extend the time for service." In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001); see also Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) ("District courts have broad discretion to extend time for service under Rule 4(m)."). In this regard, "if good cause is not established, the district court may extend time for service upon a showing of excusable neglect." Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009).
Here, there appears to be no prejudice to defendants in granting plaintiffs a brief extension of time in which to serve defendants. Moreover, given the reason stated for plaintiffs' failure to effect service, and the possibility that plaintiffs will retain counsel in the near future, it is likely that plaintiffs will serve defendants if granted a short extension of time. Finally, it appears that the pro se plaintiffs failure to serve the defendants was not the result of inexcusable neglect, since they reportedly employed a process server to serve the defendants but the process server nevertheless failed to properly serve any defendant. Plaintiffs will therefore be granted a brief extension of time in which to effect service.
Accordingly, IT IS ORDERED that:
1. Plaintiffs are granted thirty days from the date of this order to either file proof of service of the original complaint on each defendant or file and serve an amended complaint on each defendant and file with the court proof of service of the amended complaint on each defendant;
2. A Status (Pretrial Scheduling) Conference is set for Friday, October 5, 2012, at 10:00 a.m. at the United States District Court, 501 I Street, Sacramento, California, in Courtroom No. 27 before the undersigned;
3. Within fourteen (14) days after plaintiffs are served with this order, plaintiffs shall serve upon each defendant one copy of this order, as well as a copy of the Notice of Availability of a Magistrate Judge and the related form that were served on plaintiffs by the Clerk on February 28, 2012; within five (5) days after serving the required copies on the defendants, plaintiffs shall file a certificate of service indicating the date and manner of service of the copies on each defendant;
4. Any party may appear at the Status (Pretrial Scheduling) Conference telephonically if the party pre-arranges such appearance by contacting Pete Buzo, the courtroom deputy of the undersigned magistrate judge, at (916) 930-4128 at least 48 hours before the Status (Pretrial Scheduling) Conference. A land line telephone number must be provided;
5. Plaintiffs shall file and serve a status report on or before September 21, 2012, 2012, and defendants shall file and serve status reports on or before September 28, 2012. Each party's status report shall address all of the following matters:
a. Progress of service of process;
b. Possible joinder of additional parties;
c. Possible amendment of the ...