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Carrington v. Starbucks Corp.

United States District Court, S.D. California

November 21, 2017

KILEIGH CARRINGTON, individually and on behalf of members of the general public similarly situated, Plaintiff,
v.
STARBUCKS CORPORATION, a Washington Corporation; and DOES 1-10, inclusive, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO DISMISS

          HON. DANA M. SABRAW UNITED STATES DISTRICT JUDGE

         This case comes before the Court on Defendant's motion to dismiss the Complaint. Plaintiff filed an opposition to the motion, and Defendant filed a reply. For the reasons set out below, the motion is denied.

         I.

         BACKGROUND

         In June 2014, Plaintiff Carrington filed a claim against Defendant Starbucks in state court under the Private Attorneys General Act ("PAGA") challenging Starbucks's meal break practice ("Carrington I"). Defendant removed that case to this Court, (Case No. 14cv1763 BAS(MDD)), but the case was remanded to state court. On October 24, 2016, trial commenced in Carrington I, and the court found in favor of Carrington on liability. The trial court awarded penalties on December 19, 2016, and entered judgment in favor of Carrington on July 20, 2017.

         While Carrington I was pending, Plaintiff commenced this lawsuit, which also challenges Defendant's meal break policy. Although Federal Rule of Civil Procedure 4(m) required Plaintiff to serve the summons on Defendant with 90 days of filing the Complaint, or by March 21, 2017, Plaintiff did not do so. Thus, on August 25, 2017, this Court issued a notice of a hearing under Rule 4(m) regarding dismissal of the case for want of prosecution. Plaintiff thereafter served Defendant on August 31, 2017. On September 12, 2017, Plaintiff's counsel submitted a declaration explaining the reasons for the delay in service. On the same day, the Court vacated the Rule 4(m) hearing. Defendant now moves to dismiss the case for insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5).

         II.

         DISCUSSION

         Federal Rule of Civil Procedure 4(m) provides:

If 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 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.

Fed. R. Civ. P. 4(m). Here, there is no dispute Plaintiff did not serve Defendant within the 90 days provided for in the Rule. The only dispute is whether Plaintiff has shown good cause for her failure to do so and whether the Court should exercise its discretion to allow for late service.

         Defendant argues Plaintiff cannot demonstrate good cause for her failure to timely serve the Complaint because the failure was intentional. T h e r e i s c a s e l a w i n t h e Ninth Circuit that supports this argument. See Fimbres v. United States, 833 F.2d 138 (9th Cir. 1987). In that case, the Ninth Circuit held "plaintiffs' assertion that they intentionally failed to effect service within 120 days because they did not want to trigger pretrial and discovery deadlines and might be unable to prosecute the action in the foreseeable future does not constitute good cause under Rule 4(j)." Id. at 139.

         Defendant asserts this reasoning is applicable here because like the plaintiff in Fimbres, Plaintiff here made a strategic decision to delay service of process to avoid the possibility of removal. There is no dispute Plaintiff did so, and that under Fimbres, the Court could dismiss her case.

         However, "[w]hen considering a motion to dismiss a complaint for untimely service, courts must determine whether good cause for the delay has been shown on a case by case basis." In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). Outside of Fimbres, the Ninth Circuit has held "that 'at a minimum, "good cause" means excusable neglect.'" Id. Excusable neglect exists where the plaintiff shows the following: "(a) the party to be served received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely ...


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