Opinion
1:21-cv-00502-AWI-EPG (PC)
06-23-2021
STEVE RAUSCH, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S EX PARTE APPLICATION FOR AN EXTENSION OF TIME TO SERVE DEFENDANT AND TO CONTINUE SCHEDULING CONFERENCE (ECF NO. 5)
Plaintiff Steve Rausch (“Plaintiff”) is proceeding through counsel in this action against the United States of America (“Defendant”) pursuant to the Federal Tort Claims Act and 42 U.S.C. § 1983. (ECF No. 1.) Before the Court is Plaintiff's ex parte application for a ninety-day extension of time to serve Defendant with the summons and complaint and to continue the Initial Scheduling Conference currently set for June 29, 2021. (ECF No. 5.) For the following reasons, the Court will deny Plaintiff's request for an extension of time to serve Defendant without prejudice and will grant Plaintiff's request to continue the Initial Scheduling Conference.
According to the application, Plaintiff's claim arises out of the denial of medical care and Plaintiff delayed in serving the complaint because Plaintiff's counsel “decided that it was advisable to obtain a thorough medical review of the case prior to service.” (ECF Nos. 5 at 2.) However, the internal medicine specialist needs Plaintiff's medical records, which are in Defendant's custody. (Id.) According to the application, “Plaintiff is serving the complaint concurrently with the filing of this motion on Defendant United States of America.” (Id.) Plaintiff requests that the Court “extend all current deadlines by ninety (90) days from the filing of this motion” and continue the Initial Scheduling Conference. (Id. at 3.)
Under Federal Rule of Civil Procedure 4(m), “If 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.” Fed.R.Civ.P. 4(m). However, “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id.
Plaintiff has not established that there is good cause to extend the deadline for service of the summons and complaint on Defendant. As an initial matter, the Court questions whether counsel's strategic decision to obtain a medical review of the case before service constitutes good cause for an extension. In any event, Plaintiff filed this case on March 24, 2021, and service was due by June 22, 2021. (See ECF No. 1.) According to Plaintiff's application, which was filed on June 22, 2021, Plaintiff effected service of Defendant concurrently with the application. Therefore, an extension of ninety days does not appear to be necessary and the Court will deny Plaintiff's request without prejudice.
Although the application states that Plaintiff is served Defendant with the complaint, the Court presumes that Plaintiff served the summons as well.
However, in light of the status of the case, the Court will continue the Initial Scheduling Conference.
Accordingly, IT IS HEREBY ORDERED THAT:
1. Plaintiff's ex parte application (ECF No. 5) requesting an extension of time to serve the summons and complaint on Defendant and a continuance of the Initial Scheduling Conference is GRANTED IN PART AND DENIED IN PART;
2. Plaintiff's request for an extension of time to serve Defendant is DENIED without prejudice; and
3. The Initial Scheduling Conference currently set for June 29, 2021, is CONTINUED to August 12, 2021, at 10:30 AM in Courtroom 10 (EPG) before Magistrate Judge Erica P. Grosjean. To participate telephonically, each party is directed to use the following dial-in number and passcode: 1-888-251-2909; passcode 1024453. The parties are also reminded to file a joint scheduling report one full week prior to the conference and email a copy of same, in Word format, to epgorders@caed.uscourts.gov, for the Judge's review.
IT IS SO ORDERED.