United States District Court, S.D. California
KILEIGH CARRINGTON, individually and on behalf of members of the general public similarly situated, Plaintiff,
STARBUCKS CORPORATION, a Washington Corporation; and DOES 1-10, inclusive, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO
DANA M. SABRAW UNITED STATES DISTRICT JUDGE
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.
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.
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).
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.
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.
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
"[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 ...