Opinion
2:20-cv-01624-GMN-VCF
12-08-2020
SHANA LEE MCCART-POLLAK, Plaintiff, v. ON DEMAND DIRECT RESPONSE LLC, et al., Defendants.
ORDER
Before the Court is the Motion for Extension of Time to Serve Defendant Craig Shandler (ECF No. 13).
Due to the COVID-19 pandemic, Plaintiff seeks a ninety-day extension under FED. R. CIV. P. 4(m) to effectuate service upon the Defendant Craig Shandler.
A. Relevant Background
On August 28, 2020, Plaintiff filed a Complaint. (ECF NO. 1). Plaintiff filed an Amended Complaint on October 8, 2020, which is the operative complaint in this matter. (ECF NO. 6). Defendant Mark Meyers has filed a motion to dismiss in this matter. (ECF No. 8). Meyers has not filed any opposition to the instant motion and the time to file an opposition has passed.
B. Relevant Law
Pursuant to Federal Rule of Civil Procedure 4(m), "[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." "The 90-day time limit imposed by Rule 4(m) expires 90 days after the first complaint in which the defendant is named..." is filed. Bolden v. City of Topeka, 441 F.3d 1129, 1148 (10th Cir. 2006)(emphasis added). Id. The district court may extend time for service of process retroactively after the 90-day service period has expired. See Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir.2003).
C. Discussion
The time to effectuate service upon the Defendant Craig Shandler has expired, and Plaintiff must make a showing of good cause or excusable neglect in order for the court to extend this deadline for an appropriate period. See Fed. R. Civ. P. 4(m); Lemoge, 587 F.3d at 1198; Mann, 324 F.3d at 1090 (the court may extend the deadline for service of process retroactively). Here, Plaintiff asserts she has been unable to perfect service of process on Defendant Shandler due to the COVID-19 pandemic. (ECF No. 13).
The court finds that good cause warrants extending the service of process deadline.
Accordingly, and for good cause shown,
IT IS ORDERED that the Motion for Extension of Time to Serve Defendant Craig Shandler (ECF No. 13) is GRANTED. The deadline to perfect service on Defendant Shandler is extended up to and including March 8, 2021.
DATED this 8th day of December, 2020.
/s/_________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE