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State of California, Ex Rel. Kamala v. Elizabeth D. Kipp

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 30, 2012

STATE OF CALIFORNIA, EX REL. KAMALA
D. HARRIS, ATTORNEY GENERAL,
PLAINTIFF,
v.
ELIZABETH D. KIPP, IN HER CAPACITY AS CHAIRPERSON OF THE TRIBAL COUNCIL OF THE BIG SANDY RANCHERIA BAND OF WESTERN MONO INDIANS,
DEFENDANT.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S EX PARTE REQUEST FOR EXTENSION OF TIME TO SERVE SUMMONS AND COMPLAINT (Docket No. 10)

On July 26, 2012, Plaintiff the State of California ("Plaintiff") filed an ex parte request for a 30-day extension of the 120-day time frame to effect service of the summons and complaint on Defendant Elizabeth D. Kipp ("Defendant"). (Doc. 10.)

Plaintiff indicates that Defendant is the "chairperson of the Big Sandy Rancheria Band of Western Mono Indians" and is voluntarily participating in discussions related to resolving the disputes at issue in this action, namely the "issues regarding the sale and taxation of cigarettes and other tobacco products on Indian reservations in California." (Doc. 10, 2:8-28.) Accordingly, Plaintiff believes that, in light of Defendant's "participation in the on-going discussions among tribal leaders and [Plaintiff] and the imminent broader discussion among tribal leaders from throughout California, . . . it is appropriate to extend the 120-day period in which to effect service of the summons and complaint on defendant for an additional 30 days." (Doc. 10, 3:10-13.) Plaintiff indicates that it will either serve Defendant with the summons and complaint or dismiss the action by no later than September 22, 2012. (Doc. 10, 3:14-15.)

Federal Rule of Civil Procedure 4(m) provides in pertinent part that a defendant must be served with the complaint "within 120 days after the complaint is filed . . . . But if the plaintiff shows good cause for the failure [to serve the complaint within the 120-day time frame], the court must extend the time for service for an appropriate period." Here, Plaintiff demonstrates good cause in seeking an extension of time to serve the summons and complaint, as the parties are engaging in voluntary discussions in an attempt to resolve the dispute at issue in this action. (See Doc. 10.)

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's ex parte application for a 30-day extension of time to serve the summons and complaint on Defendant is GRANTED;

2. Plaintiff shall either serve Defendant with the summons and complaint or dismiss the action by no later than September 22, 2012; and

3. The scheduling conference currently set for September 27, 2012, is CONTINUED to October 30, 2012, at 9:30 a.m., in Courtroom 7 before Magistrate Judge Sheila K. Oberto.

IT IS SO ORDERED.

20120730

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