United States District Court, C.D. California
PRUDENT TRUST COMPANY LIMITED; EDI M. O. FAAl, Plaintiffs,
NIANIA DABO TOURAY; PRISTINE CONSULTING COMPANY, Defendants.
ORDER DISMISSING ACTION WITHOUT PREJUDICE
RONALD S.W. LEW, Senior District Judge.
On March 31, 2015, the Court ordered  Plaintiffs Prudent Trust Company Limited and Edi M. O. Faal (collectively, "Plaintiffs") to show cause by April 10, 2015, as to why this Action should not be dismissed for lack of prosecution. Plaintiffs initiated this Action on November 19, 2014, and as of March 31, 2015, Plaintiffs had not filed proofs of service for remaining Defendants Niania Dabo Touray and Pristine Consulting Company (collectively, "Defendants). See Dckt. #1; Fed.R.Civ.P. 4(m).
On April 10, 2015, Plaintiffs filed a response  to the Court's Order . In Plaintiffs' response, Plaintiffs' attorney, Mr. Ronald G. Kim ("Mr. Kim"), declares that Plaintiffs served Niania Dabo Touray and Pristine Consulting Company on April 3, 2015. Kim Decl. ¶¶ 3, 4, ECF No. 23. Mr. Kim explains that Defendant Niania Dabo Touray was served by email on April 3, 2015, due to her unknown location and cites Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.2d 1007, 1018 (9th Cir. 2002) for the contention that electronic service is proper "where service cannot be made by other means and the e-mail does not bounce back." Kim Decl. ¶ 3. Mr. Kim declares that Defendant Pristine Consulting Company ("Pristine") was served on April 3, 2015, by certified mail with return receipt requested, as well as by email on April 8, 2015, at an address in Virginia, and that the late service of process on Defendant Pristine was due to Plaintiffs' diligence in "attempting to effectuate service... by Hague Convention on Defendant [Pristine] at its office in Gambia." Id . ¶ 4.
I. LEGAL STANDARD
Rule 4(m) states that "[i]f 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 the defendant or order that service be made within a specified time." Fed.R.Civ.P. 4(m). Rule 4(m) requires the court to extend the time for service to be made "if the plaintiff shows good cause for the failure" to timely serve the defendant. Fed.R.Civ.P. 4(m). Rule 4(m) "does not apply to service in a foreign country under Rule 4(f) or 4(j)(1)." Additionally, courts have the "inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute." Chase v. Gen. Growth Prop. Corp., No. CV 07-3405-JVS(E), 2008 WL 622036, at *1 (C.D. Cal. Feb. 28, 2008); see Link v. Wabash R.R., 370 U.S. 626, 630-32 (1962) (noting that courts have the inherent authority "to clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief").
A. Defendant Touray
Here, Plaintiffs served Defendant Niania Dabo Touray on April 3, 2015, by email because Defendant Touray's residence is unknown, as she allegedly "fled from The Gambia in July 2014.'" Kim Decl. ¶ 4. Plaintiffs assert that service by email was proper here under Rule 4 and Ninth Circuit precedent. See id. However, the case Plaintiffs cite in support of their e-service on Defendant Touray holds, contrary to Plaintiffs' contention, that "email service is not available absent a Rule 4(f)(3) court decree, " which, in this case was never requested by Plaintiffs. Rio Properties, 284 F.3d at 1018; see also Fed.R.Civ.P. 4(f)(3). As such, Plaintiffs' service by email on Defendant Touray is improper.
While Rule 4(m)'s 120-day deadline does not apply to foreign service on an individual under Rule 4(f), Fed.R.Civ.P. 4(m), Plaintiffs have not shown any attempt at proper service on Defendant Touray under Rule 4(f). Though the Ninth Circuit in Lucas v. Natoli, 936 F.2d 432, 432-33 (9th Cir. 1991) held that the 120-day service deadline in Rule 4(m) was inapplicable to successful service in a foreign country under Rule 4(j), Lucas is distinguishable.
In Lucas, the Plaintiffs had successfully served the defendants under Rule 4(j) eleven months after the complaint was filed. 936 F.2d at 432. The only question on appeal was "whether the requirement of Fed.R.Civ.P. 4(j) that the complaint be served within 120 days after filing applies to service in a foreign country." Id . Lucas should not be extended beyond its holding-that successful service of process under Rule 4(j) is proper because the Federal Rules do not impose a specific deadline on service of process under Rule 4(j)(1) or 4(f). See Fed.R.Civ.P. 4(m); 936 F.2d at 432-33. Lucas does not speak to the court's inherent discretion to move a case along when a plaintiff fails to serve a defendant, even a foreign defendant, with reasonable diligence. See, e.g., O'Rourke Bros. Inc. v. Nesbitt Burns, Inc., 201 F.3d 948, 952 (7th Cir. 2000) ("It may well be that the provision for dismissal without prejudice under Rule 4(m) does not apply when service is attempted in a foreign country, but it does not follow that a court is left helpless when it wants to move a case along.").
Here, unlike in Lucas, Plaintiffs have not successfully served Defendant Touray under any subsection of Rule 4. Plaintiffs have also failed to even attempt proper service on Defendant Touray, as email is not an appropriate method of service of process absent a requested court order. Plaintiffs have no excuse for failing to abide by Rule 4's requirements; both Rule 4 and Ninth Circuit precedent, including the Ninth Circuit case cited by Plaintiffs in their Response  to the Order to Show Cause, clearly state that a court order must be sought prior to serving a defendant by email.
Because Plaintiffs failed to even attempt proper service on Defendant Touray under Rule 4 after the Court's Order to Show Cause, the Court finds that cause has not been shown as to why this case should not be dismissed for failure to prosecute and finds Plaintiffs' actions dilatory. As such, the Court, by its inherent power to manage its cases, HEREBY DISMISSES without prejudice Defendant Niania Touray from this Action. See Link, 370 U.S. at 630-32.
B. Defendant Pristine Consulting Company
Plaintiffs untimely served Defendant Pristine Consulting Company ("Pristine"), which the Court understands to be a foreign corporation with a Virginia location,  on April 3, 2015, by certified mail with return receipt requested, at Pristine's ...