Opinion
SACV 21-01371-CJC (ADSx)
12-14-2021
DAVID ULERY v. STUDENT ASSIST PLUS, LLC
PRESENT: HONORABLE CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
CIVIL MINUTES - GENERAL
PROCEEDINGS: (IN CHAMBERS) ORDER DISMISSING CASE WITHOUT PREJUDICE
On August 20, 2021, Plaintiff David Ulery filed this putative class action against Defendant Student Assist Plus, LLC for violation of the Telephone Consumer Protection Act. (Dkt. 1 [Complaint].) Under Federal Rule of Civil Procedure 4, Plaintiff was required to serve Defendant within 90 days, or by November 18, 2021. On November 24, 2021, the Court issued an Order to Show Cause why the case should not be dismissed for lack of prosecution because Plaintiff had not filed a proof of service. (Dkt. 9.) The Court ordered Plaintiff to respond to the OSC in writing by November 30, 2021. (Id.)
On December 1, 2021, Plaintiff filed a late response to the OSC, stating that "Plaintiffs undersigned counsel, through inadvertence and excusable neglect, failed to ensure that the summons and complaint were timely served on Defendant." (Dkt. 10 ¶ 3.) Plaintiff asked the Court to extend the time to serve the summons and complaint through December 10, 2021. (Id. ¶ 4.) Now, four days after Plaintiffs requested date. Plaintiff has still not filed a proof of service.
"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.” Fed.R.Civ.P. 4. Accordingly, Plaintiff's case is DISMISSED WITHOUT PREJUDICE.