Opinion
ED CV 24-1351-MWF(E)
11-21-2024
ROBERT ALLEN MURRELL, Plaintiff, v. COUNTY OF RIVERSIDE, ET AL., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Michael W. Fitzgerald, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On June 27, 2024, Plaintiff filed a Complaint. On July 12, 2024, Plaintiff paid the filing fee.
On October 16, 2024, the Magistrate Judge filed a Minute Order concerning Plaintiff's evident failure to serve the Summons and Complaint upon Defendants within 90 days after the filing of the Complaint. The Minute Order required that Plaintiff file a declaration within thirty days attempting to show good cause, if there be any, why Plaintiff had failed to serve the Summons and Complaint in a timely manner. The Minute Order cautioned that “[f]ailure to show good cause why timely service has not been made may result in the recommendation that the action be dismissed without prejudice.” Nevertheless, Plaintiff failed to file any declaration within the allotted time.
DISCUSSION
Under Rule 4(m) of the Federal Rules of Civil Procedure, a court may dismiss an action without prejudice if the summons and complaint are not served on the defendant within 90 days after filing the complaint or such further time as ordered by the court. See Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). Rule 4(m) requires the Court to extend the time for service if a plaintiff shows good cause for the failure to serve. “At a minimum, ‘good cause' means excusable neglect.” Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991). A court has “broad discretion” to extend the time for service under Rule 4(m), even absent a showing of good cause. See Efaw v. Williams, 473 F.3d at 1040-41; see also United States v. 2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 773 (9th Cir. 2004) (Rule 4(m) gives courts “leeway to preserve meritorious lawsuits despite untimely service of process”). A court may consider various factors including prejudice to the defendant, actual notice, a possible limitations bar, and eventual service. See Efaw v. Williams, 473 F.3d at 1041. Any such dismissal should be without prejudice. See United States v. 2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 366 F.3d at 772.
This Court should dismiss the present action under Rule 4(m) and for failure to prosecute. Plaintiff has not demonstrated good cause for the failure to effect timely service, and no cause appears from the record. The Court should not exercise its “broad discretion” to extend the time for service. There is no evidence that Defendant has actual notice of this action. The possible prejudice to Defendant resulting from the delay is unknown, as is the impact of dismissal on a possible future limitations bar. There is no indication when, if ever, Plaintiff eventually would effect service.
Additionally, the Court has inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute. Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962); see Fed.R.Civ.P. 41(b); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-62 (9th Cir.), cert. denied, 506 U.S. 915 (1992) (“Ferdik”). Plaintiff's failure to respond to the October 16, 2024 Minute Order constitutes a failure to prosecute. The Court has considered the factors recited in Ferdik and has concluded that dismissal without prejudice is appropriate. In particular, any less drastic alternative would not be effective under the circumstances of this case.
RECOMMENDATION
For the reasons discussed herein, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered dismissing the action without prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.