United States District Court, C.D. California
ORDER DISMISSING ACTION AGAINST OPT OUT SERVICES LLC
Fernando M. Olguin United States District Judge.
filed his state-court complaint on February 10, 2017,
(see Dkt. 1, Notice of Removal (“NOR”)
at ¶ 2; Dkt 1-1, Complaint), which was removed by
certain defendants on March 9, 2017. (See Dkt. 1,
NOR). By order dated April 19, 2017, plaintiff was ordered to
show cause (“OSC”), on or before April 25, 2017,
why the remaining defendant - Opt Out Services LLC - should
not be dismissed for lack of prosecution for failure to
complete service of the summons and complaint as required by
Rule 4(m) of the Federal Rules of Civil
Procedure. (See Dkt. 20, Court's Order
of April 19, 2017). Plaintiff was admonished that
“[f]ailure to file a timely response to th[e] Order to
Show Cause may result in Opt Out Services LLC being dismissed
for lack of prosecution and for failure to comply with the
orders of the court, pursuant to Fed.R.Civ.P. 41(b); Link
v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82
S.Ct. 1386, 1388 (1962).” (Id.). Plaintiff did
not respond to the OSC by the April 25, 2017 deadline.
(See Dkt. 23, Court's Order of May 3, 2017).
on May 3, 2017, the court issued another order and reiterated
that “[a]bsent a showing of good cause, an action must
be dismissed without prejudice if the summons and complaint
are not served on a defendant within 90 days after the
complaint is filed. Fed.R.Civ.P. 4(m).” (See
Dkt. 23, Court's Order of May 3, 2017). The court granted
plaintiff one final opportunity to comply with Rule 4(m), and
set May 12, 2017, as the deadline for plaintiff to file a
proof of service with respect to Opt Out Services LLC.
(See id.). The court “admonished [plaintiff]
that failure to respond to the OSC or file a proof of service
by the May 12, 2017, deadline will result in the
action being dismissed without prejudice for lack of
prosecution and/or failure to comply with the orders of the
court.” (Id.) (citing Fed.R.Civ.P. 41(b);
Link, 370 U.S. at 629-30, 82 S.Ct. at 1388)
(emphasis added). As of the date of this Order, plaintiff has
not filed a proof of service nor a response to the OSC.
(See, generally, Dkt.).
4(m) provides that “[i]f a defendant is not served
within 90 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[.]” If, however, a plaintiff shows good cause
for the failure to serve the complaint within that time
frame, the court must extend the time for accomplishing
service. See id.; see also Muhammed v. Dep't
of Treasury, 1998 WL 986245, *3 (C.D. Cal. 1998). The
burden of establishing good cause is on the plaintiff.
Muhammed, 1998 WL 986245, at *4. The “good
cause” exception to Rule 4(m) “applies only in
limited circumstances” and is not satisfied by
“inadvertent error or ignorance of governing
rules[.]” Hamilton v. Endell, 981 F.2d 1062,
1065 (9th Cir. 1992); see also Townsel v. Contra Costa
Cty., Cal., 820 F.2d 319, 320-21 (9th Cir. 1987)
(holding that ignorance of Rule 4 is not good cause for
untimely service and affirming dismissal under Rule 4(m),
even though the statute of limitations had run).
addition, a district court may dismiss an action for failure
to prosecute or to comply with court orders. Fed.R.Civ.P.
41(b); Link, 370 U.S. at 629-30, 82 S.Ct. at 1388
(authority to dismiss for failure to prosecute necessary to
avoid undue delay in disposing of cases and congestion in
court calendars); Ferdik v. Bonzelet, 963 F.2d 1258,
1260 (9th Cir.), cert. denied, 506 U.S. 915 (1992)
(district court may dismiss action for failure to comply with
any court order). Dismissal, however, is a severe penalty and
should be imposed only after consideration of the relevant
factors in favor of and against this extreme remedy.
Thompson v. Housing Authority of Los Angeles, 782
F.2d 829, 831 (9th Cir.) (per curiam), cert.
denied, 479 U.S. 829 (1986). These factors include:
“(1) the public's interest in expeditious
resolution of litigation; (2) the court's need to manage
its docket; (3) the risk of prejudice to the defendants; (4)
the public policy favoring disposition of cases on their
merits and (5) the availability of less drastic
sanctions.” Id. (citing Henderson v.
Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).
to Rules 4(m) and 41(b) and the Court's inherent power to
achieve the orderly and expeditious disposition of cases,
see Link, 370 U.S. at 629-30, 82 S.Ct. at 1388, and
in light of the factors outlined in Henderson,
supra, dismissal of unserved defendant Opt Out
Services LLC from this action without prejudice for failure
to effect service and comply with the Court's Orders to
Show Cause issued on April 19, 2017, and May 3, 2017, is
appropriate. Dated this 22nd day of May, 2017.
 The two other defendants named in the
Complaint have been dismissed. (See Dkt. 17 &
 Unless otherwise indicated, all
“Rule” references are to the Federal Rules of