Summary
denying the plaintiffs' applications to proceed in forma pauperis because they failed to comply with the requirements of 28 U.S.C. § 1915 by not signing under penalty of perjury
Summary of this case from Cox v. CarrOpinion
Case No. 99cv768 JM(POR)
September 29, 2001
ORDER GRANTING MOTION TO DISMISS UNDER RULE 4(m)
Defendants move to dismiss the complaint for failure to effectuate timely service pursuant to Federal Rule of Civil Procedure 4(m) and for lack of person jurisdiction on grounds that Plaintiffs failed to comply with the service requirements of Rule 4(I) in serving the United States. Plaintiffs oppose the motion.
On April 15, 1999 Plaintiffs commenced this action seeking, among other things, the recovery of $31,603 alleged to have been wrongfully seized by the Internal Revenue Service. Accompanying the original complaint was an application by Plaintiffs to proceed in forma pauperis. On April 21, 1999 the court denied Plaintiffs' applications to proceed in forma pauperis finding that they failed to comply with the requirements of 28 U.S.C. § 1915: one application was not signed under penalty of perjury and the other application was incomplete. The court denied the applications without prejudice and attached forms for Plaintiffs to complete. The court also indicated that it would consider a renewed request to proceed without payment of costs and fees. Plaintiffs took no further action to prosecute this case until two years later when, on April 16, 2001, they filed a renewed motion to proceed in forma pauperis. Defendants now move to dismiss the complaint for failure to timely serve the complaint.
If a plaintiff fails to serve the defendant within 120 days from the filing of the complaint, the court "shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period." Rule 4(m). Addressing the "good cause provision of Rule 4(m) first, the court finds that Plaintiffs fail to set forth any reason why they waited for two years before renewing their application to proceed in forma pauperis (in order to obtain service by the Marshal' Service without the payment of any costs or fees) or, alternatively, waited for two years before attempting service on Defendants. From Plaintiffs' submissions, it appears that Plaintiffs — without explanation — took no steps to effectuate service until April 2001, two years after filing the original complaint. Accordingly, Plaintiffs cannot secure an extension of time to effectuate service of process under the "good cause" provision of Rule 4(m).
To the extent that Plaintiffs contend that they had to amend the complaint prior to serving the original complaint, such an argument does not constitute "good cause." See Wei v. Hawaii, 763 F.32 370, 372 (9th Cir. 1985).
If no good cause is shown, the court may still exercise its discretion and grant an appropriate extension of time to effectuate service. "Such discretionary relief may be justified 'if the applicable statute of limitations would bar the refiled action.'" De Tie v. Orange County, 152 F.3d 1109, 1111 n. 5 (9th Cir. 1988) (quoting Fed.R.Civ.P. 4 Advisory Committee Note to 1993 Amendments, Subdivision (m)). The Advisory Committee Notes also provide that "relief may be justified, for example . . . if the defendant is evading service or conceals a defect in attempted service." Id. With respect to the running of the statute of limitations, the district court is not required "to extend the time for service of process. Rather, absent a finding of good cause, a district court may in its discretion still dismiss the case, even after considering that the statute of limitations has run and the refiling of an action is barred." Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1306 (3rd Cir. 1995).
Here, despite the fact that the statute of limitations may bar some of Plaintiffs' claims, the court declines to exercise its discretion to grant Plaintiffs an additional two years to effectuate service of process. Plaintiffs' unexplained lack of diligence in attempting service during the original 120 day period of time — or for the next 610 days — does not support the exercise of this court's discretion. To grant the extension requested by Plaintiffs would virtually eliminate Rule 4's service requirements and provide an unwarranted de facto two year extension of time to applicable statutes of limitations. Accordingly, the court declines to exercise its discretion and dismisses the complaint without prejudice. Plaintiffs may file a new action seeking relief for those claims not barred by the statute of limitations.
The court observes that Plaintiffs assert that the Internal Revenue is taking abuse collections efforts. Such claims clearly do not appear to be barred by the statute of limitations.
Finally, the court denies all other pending motions as moot.
IT IS SO ORDERED.