United States District Court, C.D. California
Luis Carrillo, Attorneys Present for Plaintiff.
Attorneys Present for Defendant, Denise Zimmerman.
CIVIL MINUTES - GENERAL Proceedings: MOTION TO DISMISS DEFENDANT MCCOOLE (Dkt. #28, filed March 4, 2014)
CHRISTINA A. SNYDER, District Judge.
I. INTRODUCTION AND BACKGROUND
Plaintiffs Danny Moran, Berenice Vallejo, Billy Hernandez, Trinidad Castaneda, R.M., and G.M. filed this action on October 29, 2012, against the City of Los Angeles, Los Angeles Police Department ("LAPD") Chief Charles Lloyd Beck, and LAPD Officer Daniel McCoole. The complaint asserts claims under 42 U.S.C. § 1983 and related claims. Compl. ¶¶ 23-61.
Moran filed a proof of service of the summons and complaint as to the City of Los Angeles and Beck on February 1, 2013. Dkt. #'s 5-6. On May 22, 2013, this Court issued an order to show cause why this action should not be dismissed for lack of prosecution as to McCoole. Dkt. #10. Plaintiffs responded on June 6, 2013. Plaintiff's counsel stated that he had assumed that his staff served McCoole at the same time that they served Beck and the City of Los Angeles, but that he failed to "catch" that service was not in fact effectuated. Carrillo Decl. ¶ 6. Counsel further stated that, after receiving the order to show cause, he contacted the LAPD and determined that McCoole was no longer employed by the LAPD, and could therefore not be served with documents through any LAPD mechanism. Id . ¶¶ 8, 12. On June 19, 2013, the Court granted plaintiffs a 30-day extension within which to serve McCoole. Dkt. #15. On July 9, 2013, plaintiffs filed a proof of service of the summons and complaint as to McCoole. Dkt. #16. The proof of service states that McCoole was served in person on July 3, 2013. Dkt. #16.
On August 8, 2013, the Court issued a second order to show cause why this action should not be dismissed for lack of prosecution as to McCoole. Dkt. #19. In that order, the Court stated that it would consider an answer by McCoole, or a request to enter default as to McCoole, to be a satisfactory response to the order to show cause. Id . On August 23, 2013, plaintiffs filed a response to the order to show cause. Dkt. #20. There, plaintiffs' counsel stated that, between July 18 and 25, 2013, he corresponded via email with an attorney for the City of Los Angeles, who stated that McCoole still had not been served with the summons and complaint. Id . Plaintiffs' counsel also stated his intention to file a request to enter default against McCoole based on the fact that he possessed a sworn declaration from his process server stating that McCoole was personally served on July 3, 2013. Id . Plaintiffs' counsel also stated that "the process server recognized [McCoole] because I showed the video to the process server." Id . Plaintiffs filed a request to enter default against McCoole on August 23, 2013, the same day that they responded to the Court's second order to show cause. Dkt. #21.
On August 29, 2013, the City of Los Angeles and Beck filed, on McCoole's behalf, an objection to plaintiff's request to enter default against McCoole. Dkt. #22. This objection included a declaration from McCoole, in which he stated that he "was not present at [the address at which service was purportedly made] when the process server claims to have personally served me." Dkt. #22, McCoole Decl. ¶ 2. Additionally, McCoole stated that, "[b]etween September 12, 2011, and August 1, 2013, I have only been inside [that] residence... one time with my wife. That date was in May, 2013.... Any adult male' that the process server claims to have seen on July 3, 2013, was not and could not have been me." Id . ¶¶ 3, 5.
On September 4, 2013, the Clerk of Court issued a "notice of deficiency" as to plaintiff's request for entry of default. Dkt. #23. The notice stated that the name of the person served with the summons and complaint "does not exactly match the person named in [the] complaint, " and that no proof of service was provided in conjunction with the request to enter default. Id.
On November 7, 2013, the Court issued a third order to show cause why this action should not be dismissed for lack of prosecution as to McCoole, based on plaintiffs' failure to correct the deficiencies in the request to enter default. Dkt. #25. Plaintiffs responded on November 18, 2013. Dkt. #27. In the response, plaintiffs' counsel stated that he intended to file an amended request to enter default on November 20, 2013. Id . No amended request to enter default was ever filed.
On March 4, 2014, the City of Los Angeles and Beck filed, on McCoole's behalf, the present motion to dismiss McCoole from this action pursuant to Federal Rule of Civil Procedure 4(m). Dkt. #28. Plaintiffs filed an opposition on March 24, 2014, dkt. #29, and defendants replied on March 28, 2014, dkt. #30. The Court held a hearing on April 14, 2014. After considering the parties' arguments, the Court finds and concludes as follows.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 4(m) provides in relevant part as follows:
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. "The good cause' exception to Rule 4(m) applies only in limited circumstances' and is not satisfied by inadvertent error or ignorance of the governing rules.'" Dietzmann v. Baca, 2009 WL 2898811, at *2 (C.D. Cal. Sept. 4, 2009) (quoting Hamilton v. Endell , 981 F.2d 1062, 1065 (9th Cir. 1992)). However, even in the absence of a showing of good cause, courts may exercise their discretion to grant an extension of time to effectuate service. United States v. 2, 164 Watches, More or Less Bearing a Registered Trademark of Guess?, Inc. , 366 F.3d 767, 772 (9th Cir. 2004). A court has "broad" discretion in determining whether to grant an extension. In re Sheehan , 253 F.3d 507, 513 (9th Cir. 2001). Factors that the court may consider in deciding whether to exercise that discretion include (1) whether the ...