Opinion
3:16-cv-00592-HDM-WGC
11-15-2016
MARK SHARKOZY, Plaintiff, v. TERRA-GEN OPERATING COMPANY, INC., et al., Defendants.
ORDER
Before the court is defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 4(m) (ECF No. 12). Plaintiff responded (ECF No. 18) and defendants replied (ECF No. 19).
Plaintiff filed the complaint on March 17, 2016 in the Southern Division of the District (ECF No. 1) and the case was transferred to the Northern Division on October 12, 2016 (ECF No. 23). On June 13, 2016, plaintiff filed a motion to extend time for service of process(ECF No. 7). Plaintiff asserted that the defendants were not commonly known to his process servers, plaintiff's counsel had been diligent in researching the resident agents, and defendants' counsel declined to waive or accept service. The Magistrate Judge granted plaintiff's motion, giving plaintiff until August 15, 2016 to effectuate service on the defendants (ECF No. 8). The defendants were served with the complaint on August 12, 2016 (ECF Nos. 9-11).
Federal Rule of Civil Procedure 6(b) grants courts discretion to enlarge time periods set by the rules. Rule 6(b)(1) provides in pertinent part, that a court may, for good cause shown, grant an extension of time if the request is made before the expiration of the time period to be enlarged. Fed.R.Civ.P. 6(b)(1)(A). "Rule 6(b)(1) clearly authorizes the trial judge to extend time for service of summons and complaint if the [Rule4(m) 90] day period has not yet expired." U.S. for the Use and Benefit of DeLoss v. Kenner Gen. Contractors, Inc., 764 F.2d 707, 711 (9th Cir. 1985). Federal Rule of Civil Procedure 4(m) provides:
If a defendant is not served within 90 days after the complaint is filed, the court-on motion or 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).
Defendants argue that this case should be dismissed because the plaintiff failed to serve the complaint within the deadline as established by Federal Rule of Civil Procedure 4(m). Defendants further assert that the plaintiff failed to establish good cause for an extension of service. However, the defendants failed to object to the Magistrate Judge's order granting the extension of time or file a motion for reconsideration. Because the plaintiff requested the extension of time before the expiration of the time period for completing service, and then served the defendants within the extended deadline set by the Magistrate Judge, the defendants have failed to state a factual or legal basis to support a motion dismiss this case under Rule 4(m). Accordingly, the defendants' motion to dismiss (ECF No. 12) is DENIED.
IT IS SO ORDERED.
DATED: This 15th day of November, 2016.
/s/_________
UNITED STATES DISTRICT JUDGE