Opinion
4:23-cv-00297-KAW
01-24-2024
ALFRED MCZEAL, Plaintiff, v. SOLON HOUSE, LLC, et al., Defendants.
ORDER DISMISSING CASE WITHOUT PREJUDICE RE: DKT. NOS. 37, 38, 39, 42
KANDIS A. WESTMORE UNITED STATES MAGISTRATE JUDGE
On August 4, 2023, the Court separately quashed Plaintiff's attempted service on Defendants RE/MAX Gold (Dkt. No. 37) and Defendants Solon House, LLC, the Del Prado Family Trust, Bennett Hong, B. Hong Pro Fiduciary, Glasser & McDonagh, Stephen Bernard McDonagh, and Bradford Wang (Dkt. No. 38). In quashing service of process, the Court ordered Plaintiff to serve all defendants in accordance with Federal Rule of Civil Procedure 4, and to do so within 60 days of that order. Ids. at 5. Plaintiff was advised that the failure to timely serve “may result in dismissal without prejudice without any further notice.” Ids.
The last date to complete service was October 3, 2023, and to date, no certificates of service have been filed. On October 16, 2023, the Court issued an order to show cause requiring Plaintiff to explain “why this matter should not be dismissed for failure to comply with the court-ordered service deadline.” (Dkt. No. 39 at 1.) Plaintiff was ordered to respond by October 27, 2023. Id. Plaintiff was further ordered to serve all defendants and file the certificates of service on the docket by October 27, 2023. Id. Plaintiff was advised that “[t]he failure to both respond to this order to show cause and serve all defendants will result in this case being dismissed without prejudice.” Id.
Plaintiff did not timely respond to the order to show cause or file the certificates of service. However, on November 16, 2023, Plaintiff filed an administrative request for an extension of time to file the response to the order to show cause. (Dkt. No. 40.) Plaintiff also filed a response to the order to show cause. (Pl.'s Resp., Dkt. No. 41.) Therein, Plaintiff explained that he had not realized that service had been quashed, because he had been recovering from “recent medical challenges.” Id. at 1. Plaintiff then assured the Court that he had engaged a professional process server and was prepared to proceed with his case. Id. at 2, 4.
On November 22, 2023, the Court was satisfied with Plaintiff's response and discharged the order to show cause, and again extended Plaintiff's time to serve Defendants to December 29, 2023. (Dkt. No. 42 at 2.) The Court advised Plaintiff that there would be no further extensions, and that “if the certificates of service [were] not filed by that date, the case may be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m).” Id.
On December 29, 2023, summons was returned unexecuted against Defendants The Del Prado Family Trust, Bennett Hong, B. Hong Pro Fiduciary, Glasser & McDonagh, because the process server was unable to effect service. (Dkt. No. 43.) There is no indication that service attempts were made on the remaining defendants, as Plaintiff did not file any other documents on the public docket.
All parties have consented to the jurisdiction of the undersigned in accordance with 28 U.S.C. § 636(c). (Dkt. Nos. 6, 29, 29-1, 30.) Federal Rule of Civil Procedure 4(m) requires the Court, “on its own after notice to the plaintiff” to “dismiss the action without prejudice against that defendant or order that service be made within a specified time.” The Court had already ordered, on three separate occasions, that service be made by a specified date. (See Dkt. Nos. 37, 39, 42.) The latter two orders explicitly cautioned Plaintiff that the case would be dismissed if the defendants were not timely served. (Dkt. No. 39 at 1; Dkt. No. 42 at 2.) Despite these admonitions, Plaintiff has not served the defendants as ordered, which makes the case subject to dismissal under Rule 4(m). The Court notes that the case is separately subject to dismissal pursuant to Federal Rule of Civil Procedure 41(b), because Plaintiff has failed to comply with multiple court orders requiring him to serve Defendants in accordance with Rule 4.
Accordingly, the case is dismissed against all defendants without prejudice, and the Court will issue a separate judgment in Defendants' favor. The Clerk shall close the case.
IT IS SO ORDERED.