Opinion
No. CIV S-11-3435 KJM-KJN
07-20-2012
SCOTT N. JOHNSON, Plaintiff, v. AUNGER & AUNGER, L.P., et al., Defendants.
ORDER
On May 10, 2012, the court ordered plaintiff to show cause why this action should not be dismissed for his failure to effect service on defendant Aunger & Aunger, LP within 120 days of the filing of the complaint. (ECF 9.) Plaintiff filed an amended complaint adding defendant Beat Mobil Electronics, Inc. on May 21, 2012. (ECF 10.) Plaintiff then filed a response to the order to show cause on May 23, 2012 (ECF 12) and an amended response on May 24, 2012 (ECF 13). Plaintiff filed a notice of settlement on June 27, 2012. (ECF 14.) No defendant has been served the complaint or the notice of settlement.
In his responses to the order to show cause, plaintiff described his attempts at service and indicated he intended to file a request for additional time to effect service, which he has not done. Showing service was attempted generally constitutes "good cause," Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985); in accordance with Federal Rule of Civil Procedure 4(m), once plaintiff has shown good cause, "the court must extend the time for service for an appropriate period." Plaintiff, however, has not requested an extension of time; rather, plaintiff has filed a notice of settlement, without having effected service on any defendant.
Plaintiff's filing of an amended complaint naming an additional defendant does not reset the Rule 4 clock as to the defendant named in the original complaint. See Thongnoppakun v. Am. Express Bank, No. 11-cv-08063-ODW (MANx), 2012 U.S. Dist. LEXIS 42943, at *8 (C.D. Cal. Mar. 26, 2012) ("Plaintiff's filing of a FAC . . . does not toll or extend the time for service of defendants named in the original Complaint."); see also MacDonald v. United States, No. 11-CV-1088-IEG (BLM), 2011 U.S. Dist. LEXIS 94145, at *5 (S.D. Cal. Aug. 23, 2011); Patrick Collins, Inc. v. Does 1-3757, No. C 10-05886 LB, 2011 U.S. Dist. LEXIS 128029, at *2-4 (N.D. Cal. Nov. 4, 2011).
The court's May 10, 2012 order to show cause is hereby discharged. Plaintiff shall effect service on defendant Aunger & Aunger, LP within thirty (30) days of the entry of this order, or Aunger & Aunger shall be dismissed from this action with prejudice. The notice of settlement is disregarded, as this court lacks jurisdiction over parties who have not been served. Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344, 350 (1999) ("In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party the complaint names as defendant." (citations omitted)). Plaintiff shall file proof of service of the amended complaint on defendant Beat Mobile Electronics, Inc. by September 18, 2012.
IT IS SO ORDERED.
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UNITED STATES DISTRICT JUDGE