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Omar Samuels, Janeka Samuels v. D. Balkind


February 5, 2013


The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge


This Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.


Plaintiffs, pro se, paid the filing fee and filed a Complaint on May 10, 2012, in the United States District Court for the Eastern District of California. This Court received a transfer of the action on October 25, 2012.

Plaintiffs did not serve the Summons and Complaint within 120 days after the filing of the Complaint (or at any time to date). On October 29, 2012, the Magistrate Judge issued an Order to Show Cause stating:

IT IS ORDERED that, within thirty (30) days of the date of this Order, Plaintiffs shall show cause, if there be any, why service was not made within the 120-day period and why this case should not be dismissed without prejudice. Plaintiffs shall attempt to show such cause by filing a declaration or declarations, signed under penalty of perjury. Failure to file timely such a declaration may result in the dismissal of this action without prejudice.

Although the Magistrate Judge later extended the deadline for compliance with the Order to Show Cause, neither Plaintiff filed a declaration within the allotted time, as extended.


For the reasons discussed herein, the action should be dismissed without prejudice.

Under Rule 4(m) of the Federal Rules of Civil Procedure, the Court may dismiss an action without prejudice if the summons and complaint are not served on the defendant within 120 days after filing the complaint or within the time specified by the Court. Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). Rule 4(m) requires a court to extend the time for service if a plaintiff shows good cause for the failure to serve. "At a minimum, 'good cause' means excusable neglect." Bourdette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991). Here, Plaintiffs have not shown good cause for their failure to effect timely service on the Defendants.

A court has "broad discretion" to extend the time for service under Rule 4(m), even absent a showing of good cause. See Efaw v. Williams, 473 F.3d at 1040-41; see also United States v. 2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 773 (9th Cir. 2004) (Rule 4(m) gives courts "leeway to preserve meritorious lawsuits despite untimely service of process"). A court may consider various factors including prejudice to the defendant, actual notice, a possible limitations bar, and eventual service. Efaw v. Williams, 473 F.3d at 1041. Any such dismissal should be without prejudice. See id. at 772. In the present case, Plaintiffs' failure to comply with the Order to Show Cause renders an evaluation of these factors somewhat speculative. There is no evidence that Defendants have actual notice of this action. The possible prejudice to the Defendants resulting from the delay is unknown, as is the impact of dismissal on a possible future limitations bar. There is no indication when, if ever, Plaintiffs eventually would effect service.

Service of the Summons and Complaint by the United States Marshals Service is not an appropriate option in the present case. The Court generally will order Marshals' service when a plaintiff, in forma pauperis, files a complaint that is not dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Fed. R. Civ. P. 4(c)(2). Plaintiffs are not in forma pauperis. Rule 4(c)(2) grants the Court discretion to order Marshals' service of a non-IFP complaint "in certain limited circumstances as when a hostile defendant threatens injury to the process server." Wright and Miller, Federal Practice and Procedure, § 1090, p. 476 (3rd ed. 2002). Plaintiffs have not made any such showing.

In addition to dismissing this action for failure to effect timely service, the Court should dismiss this action for failure to prosecute. Neither Plaintiff filed a timely declaration, despite a Court Order that Plaintiffs do so. The Court has inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute. See Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962).


For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered dismissing the action without prejudice.


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