Opinion
1:21-cv-01287-AWI-SAB
11-24-2021
MAHWISH CHOUDHRY, Plaintiff, v. TULARE COUNTY, et al., Defendants.
ORDER GRANTING MOTION TO EXTEND TIME TO EFFECTUATE RULE 210 SERVICE OF PROCESS AND RETURN OF SERVICE ORDER DENYING MOTION FOR LIMITED DISCOVERY FOR PURPOSES OF EFFECTING SERVICE ORDER CONTINUING SCHEDULING CONFERENCE (ECF Nos. 5, 20, 21)
Plaintiff Mahwish Chourhry, proceeding with counsel, initiated this action on August 23, 2021, against Defendants Tulare County, Michael Boudreaux (in his official capacity as Sheriff for the Tulare County Sheriff's Office), and California Highway Patrol Officers Pimental and Cervantes. (ECF No. 1.) Plaintiff served Tulare County and Boudreaux on November 12, 2021. (ECF Nos. 18, 19.) The County and Boudreaux's answers are due by December 3, 2021. On November 19, 2021, Plaintiff concurrently filed a motion to extend time to effectuate service of process and a motion for limited discovery for purposes of effecting service. (ECF Nos. 20, 21.) An initial scheduling conference for this matter is currently set for December 7, 2021. (ECF No. 5.) For the reasons set forth herein, the Court shall grant Plaintiff's request for an extension of time and deny Plaintiff's motion for limited discovery without prejudice. In light of this ruling, the Court will additionally continue the scheduling conference to February 3, 2022.
I. MOTION TO EXTEND TIME TO EFFECTUATE RULE 210 SERVICE
Plaintiff submits an initial ex parte request pursuant to Local Rule 144(c), seeking an extension of time, through January 18, 2022, to effectuate service on Officers Pimental and Cervantes as required under Federal Rules of Civil Procedure 4(m) and 5, and Local Rule 135(d). (ECF No. 20.)
Local Rule 144(c) provides that
The Court may, in its discretion, grant an initial extension ex parte upon the affidavit of counsel that a stipulation extending time cannot reasonably be obtained, explaining the reasons why such a stipulation cannot be obtained and the reasons why the extension is necessary. Except for one such initial extension, ex parte applications for extension of time are not ordinarily granted.E.D. Cal. L.R. 144(c). Federal Rule of Civil Procedure 4(m) provides that “[i]f 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, it appears Plaintiff's entire ex parte request was submitted in the form of a declaration from counsel, thus meeting the threshold requirement under Local Rule 144(c). (See generally ECF No. 20.) Further, the Court is satisfied that good cause has been established for the submission of an ex parte application and an extension of time to effect service on the remaining unserved defendants for the reasons that follow.
As proffered in the declaration of counsel, while Defendants Tulare County and Boudreaux have been served, the attorney(s) for Defendants have not yet appeared in this action and Plaintiff was unable to reach a stipulated agreement to extend time for service. (Id. at ¶ 3.) The Court finds this explanation is sufficient to justify the filing of an ex parte application at this stage of the litigation. E.D. Cal. L.R. 144(c).
Counsel further avers that, despite diligent efforts to locate and serve Defendants Pimental and Cervantes - including engaging professional skip-tracing and process servers - Plaintiff has not yet been able to obtain contact information which would enable her to timely serve the remaining Defendants. (ECF No. 20 ¶ 3.) The Court finds this explanation sufficiently establishes good cause exists to extend the service deadline as to these two Defendants. Fed.R.Civ.P. 4(m).
The Court additionally notes Plaintiff's requested extension is accompanied by a motion for limited discovery to ascertain the contact information for the remaining unserved Defendants. As detailed further below, the Court expresses skepticism as to whether Defendants Tulare County or Boudreaux would possess the contact information Plaintiff seeks with respect to the remaining unserved Defendants. Nevertheless, because Plaintiff may possibly obtain the information she seeks through further investigative efforts, or from defense counsel once Tulare County and Boudreaux have appeared in this action, the Court deems it appropriate to grant Plaintiff's request for an extension of time to serve Defendants Pimental and Cervantes at this time. In light of this extension, the Court will also continue the scheduling conference currently set for December 7, 2021.
II. MOTION FOR LIMITED DISCOVERY FOR PURPOSES OF EFFECTING SERVICE
Concurrently with her ex parte application for an extension of time to effect service, Plaintiff moves for an order permitting limited discovery for purposes of effectuating Rule 4(m) service against Defendants Pimental and Cervantes in their individual capacities. (ECF No. 21.) However, as previously noted, the Court is skeptical as to whether Defendants Tulare County or Boudreaux, as Sheriff for the Tulare County Sheriff's Office, have knowledge of the contact information Plaintiff seeks with respect to Defendants Pimental and Cervantes, as they are not employees of Tulare County but officers with the California Highway Patrol. Furthermore, the Court finds Plaintiffs' request is premature in light of the fact that neither Tulare County nor Boudreaux have appeared or appear to be represented in this matter. Indeed, Defendants' answers to the complaint are not due until December 3, 2021. Accordingly, the Court declines to grant Plaintiff's request for limited discovery at this time. Nevertheless, the denial of Plaintiff's motion shall be without prejudice to Plaintiff filing a renewed motion once Defendants Tulare County and Boudreaux have appeared in this matter through their attorneys and based upon a good faith showing that these Defendants have access to the information Plaintiff seeks.
III. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Plaintiffs ex parte request for an extension of time to serve Defendants Pimental and Cervantes (ECF No. 20) is GRANTED. The time within which Plaintiff may serve summons on Defendants Pimental and Cervantes is hereby extended to January 18, 2022;
2. Plaintiff s motion for limited discovery (ECF No. 21) is DENIED without prejudice to renewal upon proper showing of good cause once Defendants Tulare County or Boudreaux have appeared in this action;
3. The scheduling conference set for December 7, 2021, is CONTINUED to February 3, 2022, at 9:30 a.m. in Courtroom 9; and
4. The parties shall file a joint scheduling report seven (7) days prior to the scheduling conference.
IT IS SO ORDERED.