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Ronald Metcalfe v. California Department of Corrections & Rehabilitation

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


October 22, 2012

RONALD METCALFE, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS & REHABILITATION; SALINAS VALLEY STATE PRISON ("SVSP")
WARDEN A. HEDGPETH; FORMER SVSP WARDEN M. EVANS; FORMER SVSP CHIEF DEPUTY WARDEN G. NEOTTI;
FORMER SVSP CHIEF DEPUTY WARDEN G. LEWIS;
CORRECTIONAL TRAINING FACILITY ("CTF") WARDEN R. GROUNDS; FORMER CTF WARDEN(A) C. NOLL; AND
DOES 1 THROUGH 50 INCLUSIVE,
DEFENDANTS.

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 CAUSE HEARING; ORDER 14 SETTING CASE MANAGEMENT CONFERENCE

I.Background

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

II.Analysis

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, 253 F.3d 507, 512, 514 27

At a minimum, "good cause" means excusable neglect. Boudette v. Barnette, 923 F.2d 754,

756 (9th Cir. 1991). In addition to excusable neglect, the Ninth Circuit has held that a plaintiff 3 seeking to establish good cause may be required to show three factors: "(a) the party to be served 4 received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff 5 would be severely prejudiced if his complaint were dismissed." Id.; In re Sheehan, 253 F.3d at 6

Here, several of the good cause factors identified in Boudette are absent. Specifically,

Plaintiff has not presented any evidence that all Defendants had actual notice of the lawsuit by July 9

512. 7

20, 2012. Plaintiff also has not presented facts showing he would be severely prejudiced if his 10 complaint were dismissed. The Court therefore concludes that Plaintiff has not demonstrated good

cause such that an extension of time is mandatory under Rule 4(m). See In re Sheehan, 253 F.3d at

512 (finding no good cause where plaintiff failed to show Boudette factors were satisfied). 13

14 time for service. Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir.2007). The Ninth Circuit has not 15 set forth specific factors to consider in making discretionary determinations under Rule 4(m). In re 16

Sheehan, 253 F.3d at 513. However, the Ninth Circuit has held that excusable neglect may provide 17 grounds pursuant to which a court may exercise its discretion to extend a plaintiff's time to effect 18 service. See Lemoge, 587 F.3d at 1198 ("[T]he district court may extend time for service upon a 19 showing of excusable neglect."). "In making extension decisions under Rule 4(m) a district court 20 may [also] consider factors 'like a statute of limitations bar, prejudice to the defendant, actual 21 notice of a lawsuit, and eventual service.'" Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir.2007) 22

Courts may consider whether the plaintiff has substantially complied with the service requirements. 24

Here the Court concludes that it should exercise its discretion to extend the time for service

26 of the Complaint because Plaintiff's failure to serve Defendants earlier was due to excusable 27 neglect. In determining whether neglect is excusable, a court should examine "at least four factors: 28

Absent good cause, district courts have broad, though not unlimited, discretion to extend

(quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir.1998)). Furthermore, 23

Tyson v. City of Sunnyvale, 159 F.R.D. 528, 530 (N.D.Cal.1995). 25

(1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact 2 on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." 3 2000)). 5

6 he failed to serve the Complaint by this date because he was waiting for his EEOC case to be 7 closed and to receive a Right to Sue Letter. ECF No. 16. Plaintiff received this notice on August 8

Defendants Lewis and Evans. ECF No. 10-13, 15. Thus, all Defendants, except Defendant Evans 10 and Lewis, were served within 26 days of the service deadline.

12 have received actual notice of the Complaint as he filed an answer, along with several other 13

Defendants, on August 22, 2012, only 33 days of the service deadline. The only Defendant who 14 has neither been served nor filed an answer is Defendant Evans, and he has been dismissed. ECF 15

In light of these facts, the Court concludes that all four excusable neglect factors are

17 satisfied. The delay in serving Defendants Department of Corrects & Rehabilitation, Salinas 18

Lewis, while not formally served, had notice of the Complaint within 33 days of the service 20 deadline. The meager delay in this case is unlikely to have prejudiced Defendants. Plaintiffs stated 21 reason for the delay (i.e. the fact that he had not received a Right to Sue Letter) is understandable. 22

Letter, the Court concludes that Plaintiff acted in good faith. Accordingly, the Court concludes that 24

The Court therefore ORDERS nunc pro tunc that the deadline to serve Defendants

Department of Corrects & Rehabilitation, Salinas Valley State Prison, G. Neotti, R. Groungs, and 27

C. Noll be enlarged to August 23, 2012. The Court also ORDERS that the deadline to serve 28

Lemoge, 587 F.3d at 1192 (quoting Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 4

Here, Plaintiff was required to serve all Defendants by July 20, 2012. Plaintiff states that

15, 2012. Id. Within one day of receiving the notice, Plaintiff served all Defendants except 9

For the Northern District of California

Furthermore, while no proof was served with respect to Defendant Lewis, he does appear to

United States District Court

No. 19. 16

Valley State Prison, G. Neotti, R. Groungs, and C. Noll was only 26 days. Similarly, Defendant 19

Furthermore, given Plaintiff's diligence in serving Defendants after he received the Right to Sue 23

Plaintiff's failure to effect service earlier is excusable. 25

Defendant Lewis shall be enlarged to October 25, 2012. Plaintiff shall file either a proof of service 2 or a waiver of service as to Defendant Lewis by this date. 3

Plaintiff is also hereby ORDERED to file an amended complaint reflecting the EEOC case

4 closure by October 25, 2012. The OSC hearing scheduled for October 24, 2012 is VACATED. A 5 case management conference shall be held on October 31, 2012 at 2:00 p.m. The parties' joint case 6 management statement is due October 25, 2012. 7

IT IS SO ORDERED. 8 9

20121022

© 1992-2012 VersusLaw Inc.



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