The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER DECLINING TO DISMISS
PLAINTIFF'S CASE AND
VACATING ORDER TO SHOW
SETTING CASE MANAGEMENT
On July 27, 2012, this Court issued an Order to Show Cause ("OSC") why Plaintiff Ronald Metcalfe's ("Plaintiff") Complaint should not be dismissed because of Plaintiff's failure to comply 24 with Federal Rule of Civil Procedure 4(m). ECF No. 9. Generally, Rule 4(m) requires dismissal of 25 a defendant where the plaintiff has failed to serve the defendant within 120 days, unless there is a 26 showing of good cause for the delay or unless the Court finds that it should exercise its discretion 27 28 to enlarge plaintiff's time to effect service. When the Court issued its OSC, 127 days had passed 2 since Plaintiff filed his Complaint, and no Defendants had been served. ECF No. 9. 3
4 service for all Defendants except G. Lewis and M. Evans. See ECF No. 10-13, 15. Subsequently, 5 on August 22, 2012, Defendant Lewis filed an Answer to the Complaint, suggesting he received 6 actual notice of the Complaint notwithstanding Plaintiff's failure to file a proof of service. See 7
On August 29, 2012, Plaintiff filed a response to the OSC stating that "[t]he reason for the
9 delay in serving. [D]efendants was that [P]laintiff had been waiting for the case closure and a 10
Housing and to amend his [C]omplaint to reflect the EEOC Case Closure." ECF No. 16. Plaintiff
states that he received notice of the EEOC case closure and a Right to Sue Letter on August 15, 13
Lewis and Evans). Id. Plaintiff further stated that he was "exercising due diligence in order to 15 serve" Defendant Evans. Id. Plaintiff filed a notice of voluntary dismissal as to Defendant Evans 16 on October 17, 2012. ECF No. 19.
On August 15 and 16, 2012, two weeks after the Court's OSC, Plaintiff filed proofs of ECF No. 14. Right to Sue Letter from the complaint he filed with the Department of Fair Employment and 2012 (within one day of Plaintiff's filing of proofs of service on all Defendants except Defendants
The time for serving the summons and complaint is set forth in FederalRuleof Civil
Procedure4(m). Rule 4(m) provides that:
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.
"Rule 4(m) provides two avenues for relief. The first is mandatory: the district court must extend 24 time for service upon a showing of good cause. The second is discretionary: if good cause is not 25 established, the district court may extend time for service upon a showing of excusable neglect." 26
(9th Cir. 2001)). Lemoge v. U.S., 587 F.3d 1188, 1198 (9th Cir.2009) (citing In re Sheehan, ...