United States District Court, N.D. California, San Jose Division
ORDER ADOPTING IN PART MAGISTRATE JUDGE'S REPORT
LAB SON FREEMAN United States District Judge.
November 28, 2016, Plaintiff Linda Thompson
(“Thompson”) filed the instant suit against
Defendant Stanford University (“Stanford”).
Compl., ECF 1. Thompson alleges that Stanford terminated her
on the basis of age, disability and retaliation. See
generally Id. Thompson later filed a first amended
complaint (“FAC”) on January 20, 2017. However,
Thompson did not serve any of her pleadings until the FAC was
served on March 10, 2017, eleven days beyond the 90-day
requirement of Fed. R. Civ. Proc. 4(m). ECF 12, 13.
March 29, 2017, Stanford filed a motion to dismiss for
untimely service under Fed. R. Civ. Proc. 12(b)(5), which
this Court referred to Magistrate Judge Susan van Keulen for
Report and Recommendation (“R&R”). ECF 21. On
June 2, 2017, Judge van Keulen issued her R&R,
recommending that the Court deny Stanford's motion to
dismiss as well as its request for leave to file successive
motions to dismiss. See generally R&R, ECF 24.
Judge van Keulen recommends that this Court exercise its
discretion to retroactively extend the time for service at
least because Thompson would be severely prejudiced if the
case were dismissed. R&R 4-5. According to the R&R,
Stanford's request for leave to file various Rule 12
motions should be denied because Stanford has not provided a
good reason why the grounds for its 12(b)(6), Rule 12(e), and
Rule 12(f) motions were not raised contemporaneously with its
instant Rule 12(b)(5) motion. Id. at 6-7.
timely objected to the R&R on June 16, 2017. Obj., ECF
25. The Court addresses below each of the objections to Judge
van Keulen's R&R made by Stanford.
district judge may not designate a magistrate judge to hear
and determine a motion to involuntarily dismiss an action. 28
U.S.C. § 636(b)(1)(A); Estate of Conners v.
O'Connor, 6 F.3d 656, 659 (9th Cir.1993) (“
‘[I]t was not intended that the magistrate would have
the power to hear and determine dispositive motions”).
A judge may, however, under § 636(b)(1)(B), designate a
magistrate judge to hear a motion to dismiss and submit
proposed findings of fact and recommendations for the
disposition of such a motion. Where a party files written
objections to the proposed disposition, “[t]he district
judge to whom the case is assigned shall make a de novo
determination upon the record.” Fed. R. Civ. Proc.
72(b)(3) (“The district judge must determine de novo
any part of the magistrate judge's disposition that has
been properly objected to.”); Hunt v. Pliler,
384 F.3d 1118, 1123 (9th Cir. 2004) (“With respect to
dispositive matters, a magistrate is only permitted to make
recommendations for final disposition by an Article III judge
who reviews his findings and recommendation, if objected to,
de novo.”) (citation and alterations omitted).
The Court Will Exercise Its Discretion to Retroactively
Extend Time for Service
contends that in recommending a denial of its motion to
dismiss, the R&R fails to properly weigh Thompson's
lack of a good faith attempt to timely serve the complaint
and the prejudice to Stanford. Obj. 4-5. The R&R did not
find “good cause” on the part of Thompson in for
the delay in serving the complaint and Stanford does not
dispute that. R&R 3-4; Obj. 3-4. Rather, Stanford takes
issue with the following step in the inquiry - whether absent
good cause, the Court should exercise its discretion to
retroactively extend time for service of the complaint. The
Court will analyze this issue below.
preliminary matter, the Court first identifies the correct
legal rule to apply here. In determining whether a court
should exercise its discretion to retroactively extend the
time for service of the complaint absent good cause, the
Ninth Circuit directs the courts to “consider factors
like a statute of limitations bar, prejudice to the
defendant, actual notice of a lawsuit, and eventual
service.” Efaw v. Williams, 473 F.3d 1038,
1041 (9th Cir. 2007). Given that the R&R has identified
and applied this legal standard, the Court concludes that the
R&R has identified the correct legal rule. R&R 3.
Court now applies this rule to determine whether discretion
should be exercised to retroactively extend the time for
service of the complaint absent good cause. First, with
respect to the “actual notice of a lawsuit and eventual
service, ” Stanford acknowledges in its recitation of
the factual background that there was actual notice of the
lawsuit and eventual service. Mot. to Dismiss 3, ECF 16.
These factors thus weigh in favor of exercise of discretion.
Turning to the factor of prejudice, Stanford argues that the
R&R fails to weigh the prejudice against it. Stanford
contends that the R&R did not consider that
Thompson's claims arise from conduct spanning four to six
years in the past and that Stanford would suffer prejudice
having to defend claims that would be time-barred absent this
Court's retroactive extension of time. Obj. 5. After
considering Stanford's claim of prejudice, the Court
finds that the factor of “prejudice” does not
weigh against exercise of this Court's discretion.
Stanford fails to establish a nexus between the alleged
prejudice and the delay of eleven days. The alleged prejudice
arising from four to six years in the past is not the focus
of the inquiry here. Rather, Stanford must show a nexus
between the alleged prejudice and the additional eleven days
were the retroactive extension be granted. Id.;
see Lemoge v. United States, 587 F.3d 1188, 1196,
1198 (9th Cir. 2009) (finding that the defendant fails to
“indicate how it would have changed its strategy”
to show prejudice, and ruling that extending time to complete
service was appropriate). Stanford's conclusory argument
in support of prejudice fails to show how it would have acted
differently if the pleading were to be timely served eleven
days before. The Court thus finds that the showing of
prejudice is inadequate to find in favor of Stanford and this
factor is at best neutral.
Stanford does not object to the R&R's analysis of the
remaining factor - statute of limitations bar. The Court thus
need not reiterate that analysis here but only to say that
the R&R reasonably found this factor to be severely
prejudicial to Thompson. R&R 5. In conclusion, almost all
factors weigh strongly in favor of this Court's exercise
of discretion and only the “prejudice” factor is
neutral. Accordingly, the Court finds that it should exercise
its discretion to retroactively extend the time for service
of the complaint.
Stanford's objection that the R&R must also take into
account “whether the plaintiff has attempted in good
faith to comply with the requirements of Rule 4(m)” to
make extension decisions, this objection is without support.
This factor is notably absent in both Efaw v.
Williams and Bender v. Nat'l Semiconductor
Corp. cases relied upon by Stanford. 473 F.3d 1038, 1041
(9th Cir. 2007); No. 09-01151-JSW, 2009 WL 4730896, at *3
(N.D. Cal. Dec. 7, 2009). As such, the prevailing case law
does not support Stanford's objection that this
additional factor must be taken into account. Stanford's
citation to a second circuit case is also unavailing because
the case is not binding. Nonetheless, the R&R has already
taken into consideration in the initial analysis that
Thompson has not attempted in good faith to comply with the
requirements of Rule 4(m) and thus failed to establish good
cause. R&R 3-4. Stanford does not object to that
determination. Thompson's lack of good faith to comply
with the Rule 4(m) requirement is no longer relevant in the
subsequent determination of whether this Court should
exercise its discretion to extend the time for service of the
complaint. Regardless, applying the applicable legal rule and
considering all the relevant factors, this Court concludes
that it should exercise its discretion to retroactively
extend the time for service of the complaint.
Thompson's FAC is the ...