Further, Plaintiff failed to sign the affidavit attached to the Application under penalty of perjury. See Baltierra v. U.S. Dep't of Educ., No. 99CV768 JM(POR), 2001 WL 1480297 (S.D. Cal. Oct. 1, 2001) (denying the plaintiffs' applications to proceed in forma pauperis because they failed to comply with the requirements of 28 U.S.C. ยง 1915 by not signing under penalty of perjury). The Court is therefore unable to determine whether Plaintiff is eligible to proceed in forma paueris, and will deny her Application without prejudice.
The cases on which Peake relies, however, are distinguishable. See Quinn v. Cornerstone Strategic Advisors, LLC, No. 04CV2417 JAH (AJB), 2007 WL 2462112, at *6-*7 (S.D. Cal. Aug. 27, 2007) (dismissing action under Rule 4(m) where plaintiff had previously been given "a de facto extension of time to effect service"); Glover v. City of New York, No. 1:05-cv-5552-ENV-RML, 2007 U.S. Dist. LEXIS 7693, at *15 (E.D.N.Y. Feb. 2, 2007) (dismissing action for failure to make timely service of process where plaintiff had previously been given extension of time under Rule 4(m); noting "[t]hat second time around, such inexcusable neglect forfeits the right to proceed on the complaint"); Baltierra v. U.S. Dep't of Educ., No. 99CV768 JM (POR), 2001 WL 1480297, at *2 (S.D. Cal. Oct. 1, 2001) (dismissing action under Rule 4(m) where plaintiff failed to explain "lack of diligence in attempting service during the original 120 day period-or for the next 610 days"); Am. Commercial Barge Line Co. LLC v. Tug Joan Salton, No. 99 CV 0846(RCC), 2001 WL 262724, at *5 (S.D.N.Y. Mar. 16, 2001) (dismissing action under Rule 4(m) where "[p]laintiff twice had the opportunity to serve [d]efendants timely" but "failed both times"). CONCLUSION
The Cornerstone defendants point out that some courts, including one in this District, have declined to grant an extension even when a plaintiff has demonstrated the claims would be statutorily barred if an extension were not granted. See Doc. # 85 at 9-10 (citing Baltierra v. United States Department of Education, 2001 WL 1480297 *2 (S.D.Cal.)(declining to exercise discretion to grant additional time under Rule 4(m) despite statutory bar on some of plaintiff's claims); Glover v. City of New York, 2007 U.S. Dist. LEXIS 7693 at *15 (E.D.N.Y. February 2, 2007)(dismissing action despite statutory bar to re-filing because the plaintiff had already been given an earlier extension and "such inexcusable neglect forfeits the right to proceed on the complaint."); American Commer. Barge Line Co. v. Tug Joan Salton, 2001 WL 262724 *4-5 (S.D.N.Y. March 16, 2001)(dismissing complaint because plaintiff had more than one opportunity to serve timely but still failed to do so)).