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Marianne Stahl v. Garret Degiorgio

November 21, 2012


The opinion of the court was delivered by: Hon. Margaret A. Nagle , United States Magistrate Judge




28, 2012, plaintiffs Marianne Stahl and Val Jean Bureau filed a civil rights complaint in this district ("Complaint"). The Complaint is a revised version of a complaint previously filed by plaintiff Stahl in Case No. 11-00260-RGK (MAN) (the "Prior Action"). The Prior Action was dismissed, without prejudice, for failure

2, 2012, the Court issued its "Order Re Civil Rights Case" ("July 2 Order"). The July Order expressly plaintiffs that they: "must serve the summons and complaint on all named defendants in this action within of the filing date of the Complaint, which was June 28, 2012"; and "are required to file with the Court a of service for each defendant served, within 15 days of the completion of service of process for each such

July 2 Order cautioned plaintiffs that:

If service is not completed within 120 days of the Complaint's filing date, the Court may dismiss the action in whole or against unserved defendants. Rule 4(m), Federal Rules of Civil Procedure. Service of the summons and complaint must comply with the provisions of Rule 4, Federal Rules of Civil Procedure.

period for serving the defendants in this case expired on October 26, 2012, pursuant to Rule 4(m) of the Federal of Civil Procedure. Plaintiffs were advised of this deadline by the July 2 Order. No defendant has appeared case. Moreover, plaintiffs have not filed a proof service for any defendant, as the July 2 Order required them Accordingly, the Court assumes that plaintiffs have not served any defendant with process.

4(m) provides that, if service of the summons and complaint is not made upon a defendant within 120 days the complaint, federal district courts have the authority to sua sponte dismiss an action without prejudice,

notice to the plaintiff. If, however, a plaintiff shows good cause for the failure to serve the complaint within frame, the Court must extend the time for accomplishing service. Id.; see also Muhammed v. Department of Treasury, 1998 WL 986245, at *3 (C.D. Cal. Nov. 19, 1998). The burden of establishing good cause is on the Id., at *4. The "good cause" exception to Rule 4(m) applies "only in limited circumstances" and is not by "inadvertent error or ignorance of the governing rules." Hamilton v. Endell, 981 F.2d 1062, 1065 (9th 1992); see also Townsel v. County of Contra Costa, 820 F.2d 319, 320-21 (9th Cir. 1987) (holding that of Rule 4 is not good cause for untimely service, and affirming a dismissal under Rule 4(m) even though the statute of limitations had run, and thus, the dismissal effectively was with prejudice).

July 2 Order, plaintiffs were clearly advised of their obligation to effect service of process within the Rule deadline and in compliance with Rule 4's requirements. Moreover, by that same Order, plaintiffs were notified that dismissal of this action might result if they failed to complete service of process within the Rule 4(m) deadline. Nonetheless, they have failed to meet their obligation.

litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, Cir. 1987); see also Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam) (failure of pro se to follow procedural rules justified dismissal of civil rights action). Given the Court's explicit advice to through the July 2 Order, there is no apparent cause, much less good cause, for plaintiffs' failure to this action by attempting to serve the defendants. See Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir. per curiam) (opining that Rule 4(m)'s 120-day time limit "is intended to force parties and their attorneys to be diligent in prosecuting their causes of action," and because plaintiff did not contend that he attempted to serve was confused about the requirements of service, or was prevented by effecting timely service by factors his control, a dismissal for failure to serve process was justified, even though plaintiff's claim therefore time-barred). Indeed, given that the Prior Action was dismissed due to plaintiff Stahl's failure to prosecute, incumbent upon her to prosecute this action diligently, which she plainly has not done. Under these there is no apparent basis for extending the expired Rule 4(m) period, and under Rule 4(m), dismissal of this action, without prejudice, is warranted.

by no later than December 10, 2012, plaintiffs are ORDERED TO SHOW CAUSE why this action should not be dismissed, pursuant to Rule 4(m), based on their failure to serve the defendants with process.

Plaintiffs are cautioned that a failure to timely respond to this Order to Show Cause and to Indeed, plaintiffs have not filed any document in this case since the June 28, 2012 filing of the establish good cause for their noncompliance with Rule ...

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