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Warkentine v. City of Mendota

United States District Court, Ninth Circuit

January 23, 2014

EDWARD WARKENTINE, an individual; and DANIEL TANKERSLY, an individual, Plaintiffs,
v.
CITY OF MENDOTA; KRISTAL CHOJNACKI; GERRY GALVIN; HECTOR LIZARRAGA; JOHNNY A. LEMUS; FRANCISCO AMADOR; JOSEPH R. AMADOR; LEO CAPUCHINO; JOHN FLORES; DAN GRASSERAND; HECTOR J. SORIA; ROBERT SILVA; JOSEPH RIOFRIO; BRYCE ATKINS; KORINA ZAMORA; MARTIN HERNANDEZ; SMITTY'S TOWING & AUTO DISMANTLING; ABRAHAM GONZALEZ; GONZALEZ TOWING & TIRE SHOP; AND DOES 1 through 20, inclusive, Defendants.

G. DAVID ROBERTSON, ESQ., California State Bar No. 111984 ROBERTSON & BENEVENTO, Reno, Nevada, Attorneys for EDWARD WARKENTINE and DANNIEL TANKERSLY.

PLAINTIFFS' EX PARTE APPLICATION FOR ENLARGEMENT OF TIME TO SERVE SUMMONS AND COMPLAINT; ORDER

MICHAEL J. SENG, Magistrate Judge.

EX PARTE APPLICATION FOR ENLARGEMENT OF TIME

Plaintiffs hereby submit this Ex Parte Application for Enlargement of Time to serve the Summons and Complaint pursuant to Fed.R.Civ.P. 6(b) and Eastern District L.R. 144. Plaintiffs request an additional 30 days for service beyond the 120 days prescribed in Fed.R.Civ.P. 4(m).

"When an act may or must be done within a specified time, the court may, for good cause, extend the time..." Fed.R.Civ.P. 6(b)(1). The Court has wide discretion to grant an enlargement of time when the moving party has demonstrated some justification. Jenkins v. Commonwealth Land title Ins. Co., 95 F.3d 791, 795 (9th Cir. 1996); Ginett v. Federal Express Corp., 166 F.3d 1213 at 5* (6th Cir. 1998). Enlargement will typically be granted so long as the moving party has not demonstrated bad faith or the opposing party will not be prejudiced. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010).

Plaintiffs have attempted to serve the Summons and Complaint in the above titled action on multiple defendants. While fourteen (14) named Defendants have been served, Plaintiffs have not yet located and served five (5) remaining Defendants. Plaintiffs have been unable to contact counsel for these unserved parties, or the parties themselves, to obtain a stipulation for an enlargement of time. Despite the diligent efforts of Plaintiffs' process servers, outdated contact information, changes in employment, and the rural location of these parties have thwarted multiple attempts at service within the time prescribed by Fed.R.Civ.P. 4(m).

Plaintiffs have requested no previous time extensions in this action.

For the reasons stated above, Plaintiffs respectfully requests this Court grant this Ex Parte Application for Enlargement of Time by 30 days to serve the Summons and Complaint.

ORDER

Having considered Plaintiffs' Ex Parte application for an extension of time to serve the summons and complaint in E.D California CASE NO.: 1:13-cv-01550-LJO-MSJ, and finding good cause therefore,

IT IS HEREBY ORDERED that Plaintiffs have to, and including, an additional 30 days beyond the 120 day prescribed in Fed.R.Civ.P. 4(m) to serve the summons and complaint in this action.

IT IS SO ORDERED.


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