Opinion
22-cv-07101-LJC
03-01-2023
GS HOLISTIC, LLC, Plaintiff, v. ASHES PLUS NINE, et al., Defendants.
ORDER DENYING PLAINTIFF'S SECOND MOTION FOR EXTENSION OF TIME TO FILE AND PERFECT SERVICE UPON DEFENDANTS WITHOUT PREJUDICE
RE: DKT. NO. 16
LISA J. CISNEROS UNITED STATES MAGISTRATE JUDGE
Plaintiff GS Holistic, LLC filed its Complaint in this matter on November 11, 2022, and its deadline to serve Defendants under Rule 4(m) of the Federal Rules of Civil Procedure was February 9, 2023. Dkt. 1. On February 9, 2023, Plaintiff filed a Motion for Extension of Time to File and Perfect Service Upon Defendants (“First Motion”). Dkt. 12. On February 15, 2023, the Court denied Plaintiff's First Motion without prejudice because Plaintiff had failed to comply with Local Rule 6-3(a) and Fed.R.Civ.P. 4(m). Dkt. 15. In particular, Local Rule 6-3(a) requires that a motion for an extension of time be accompanied by a declaration that, among other things, “[s]ets forth with particularity the reasons for the requested enlargement or shortening of time[.]”
Plaintiff's First Motion lacked a supporting declaration, attesting to the reasons that an extension of time was necessary, though the motion itself provided an unsworn explanation. Dkt. 12. In its February 15, 2023 Order denying Plaintiff's First Motion without prejudice, the Court gave Plaintiff seven days to refile its motion for extension of time in compliance with the local rules and showing good cause for its failure to effectuate timely service. Dkt. 15.
Plaintiff timely filed another Motion for Extension of Time to File and Perfect Service Upon Defendants (“Second Motion”) on February 22, 2023. Dkt. 16. The Second Motion attaches a “Local Rule 6-3(a) Declaration,” whereby the “Plaintiff, GS HOLISTIC, LLC (hereinafter referred to as ‘GS'), by and through its undersigned counsel, hereby makes the following declarations...” Dkt. 16-2.
Plaintiff describes the present motion as “First MOTION for Extension of Time to File and Perfect Service Upon Defendants.” Dkt. 16. However, given that this is Plaintiff's second motion filed after the Court denied Plaintiff's First Motion without prejudice, Dkt. 15, the Court refers to the present motion as Plaintiff's “Second Motion.”
28 U.S.C. § 1746 sets forth the required form for unsworn declarations under penalty of perjury. It provides that:
Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same.such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).
(Signature)”.Id. Plaintiff's “Local Rule 6-3(a) Declaration” does not contain any language declaring under penalty of perjury the truthfulness of the facts contained within. See Judge Virginia A. Phillips et al., Rutter Grp. Prac. Guide: Fed. Civ. Proc. Before Trial ¶ 12:50 (Cal. & 9th Cir. eds. 2022) (addressing requirements for wording of declaration). Instead, the declaration includes only a Certificate of Service, which was already certified by Plaintiff's counsel in Plaintiff's Second Motion. Dkt. 16. Moreover, the declaration was not made by a “person,” as contemplated by 28 U.S.C. § 1746, but by Plaintiff (a corporate entity) by and through its undersigned counsel. Dkt. 16-2. This is in violation of the local rules and the Federal Rules of Civil Procedure. See L.R. 7-5 (declarations and affidavits must comply with the requirements of Rules 56(c) and (e) of the Federal Rules of Civil Procedure).
Plaintiff's supporting declaration does not identify an individual declarant, it does not state that the facts alleged are made on the basis of any individual declarant's personal knowledge, nor does it state whether any individual declarant would be competent to testify on the matters stated within. Dkt. 16-2.
Therefore, Plaintiff's declaration does not comply with 28 U.S.C. § 1746, L.R. 7-5, or Fed.R.Civ.P. 56(c), (e). Accordingly, Plaintiff's Second Motion is DENIED without prejudice. Dkt. 16.
Within seven days from the date of this order, the Court once again will allow Plaintiff to refile its motion for an extension of time to serve Defendants, including the individual Defendant Alreyashi. Once Plaintiff's motion complies with all applicable local rules and shows good cause for its failure to effectuate timely service, then the Court may “extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m).
IT IS SO ORDERED.