Tagwerker v. Amazon.com Services LLC.
- Proceeding
- district
- Area
- civil
- Panel
- Marilyn L. Huff (author)
Analysis
The court considered Amazon's motion to dismiss co-defendants for failure to timely serve process under Federal Rule of Civil Procedure 4(m). The court denied the motion to dismiss at this time but issued an order to show cause, requiring the plaintiff to serve the co-defendants by August 26, 2024, or face dismissal.
| What the court decided | The model |
|---|---|
Motion to Dismiss Denied (via Order to Show Cause)“The Court orders Plaintiff to properly serve Amazon’s Co-Defendants, including Fuzhou Feiwo, Elenkerwalker.com, ImagineLife, and Flyworld, by August 26, 2024, and to file proofs of service with the Court. Absent a showing of good cause, failure to comply with this Order will result in dismissal of Amazon’s Co-Defendants.” | agree with court The court correctly identified that under 28 U.S.C. § 1448 and Ninth Circuit precedent (Whidbee), the 90-day service clock restarts upon removal. Since the removal occurred on May 21, 2024, the deadline was August 19, 2024. The court granted a short extension (to August 26) rather than immediate dismissal, which is within the court's discretion under Rule 4(m) to 'order that service be made within a specified time.' |
The order itself: sound — The order correctly applies the relevant statutory and case law regarding the restart of the service clock upon removal. It accurately calculates the deadline and exercises its discretion to grant a brief extension rather than immediate dismissal, which is a standard procedural remedy under Rule 4(m).
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL TAGWERKER, Case No.: 3:24-cv-00897-H-AHG 12 Plaintiff, ORDER: 13 v. 1) SUBMITTING DEFENDANT’S 14 AMAZON.COM SERVICES, LLC; MOTION TO DISMISS; AND FUZHOU FEIWO TRADING 15 COMPANY, LTD; 2) ORDERING PLAINTIFF TO 16 ELENKERWALKER.COM; SHOW CAUSE FOR FAILURE TO IMAGINELIFE; FLYWORLD, LLC; and 17 SERVE DEFENDANTS DOES 1 through 20, 18 Defendants. [Doc. No. 13.] 19 20 On July 1, 2024, Defendant Amazon.com Services, LLC (“Amazon”) filed a 21 motion to dismiss its Co-Defendants, Fuzhou Feiwo Trading Company, Ltd. (“Fuzhou 22 Feiwo”), Elenkerwalker.com, ImagineLife, and Flyworld, LLC (“Flyworld”), 23 (collectively, “Amazon’s Co-Defendants”) pursuant to Federal Rule of Civil Procedure 24 4(m) for Plaintiff’s failure to timely serve Amazon’s Co-Defendants. (Doc. No. 13.) On 25 July 15, 2024, Plaintiff Michael Tagwerker (“Plaintiff”) filed a response in opposition to 26 Amazon’s motion. (Doc. No. 17.) On July 22, 2024, Amazon filed a reply. (Doc. No. 27 20.) The hearing on Defendant’s motion to dismiss is currently scheduled for Monday, 28 1 August 26, 2024, at 10:30 a.m. The Court, pursuant to its discretion under Civil Local 2 Rule 7.1(d)(1), determines the matter is appropriate for resolution without oral argument, 3 submits the motion on the parties’ papers, and vacates the hearing. 4 For the reasons below, the Court issues an order to show cause. On October 24 5 2023, Plaintiff filed this action against Amazon, Fuzhou Feiwo, ElenkerWalker.com, 6 ImagineLife.com, Flyworld, and Does 1 through 20 in the Superior Court of California, 7 County of San Diego. (Doc. No. 1-5, Compl.) On November 16, 2023, Plaintiff served 8 Amazon with his complaint. (Doc. No. 1-12.) On May 21, 2024, Amazon removed the 9 action to this Court. (Doc. No. 1.) 10 Federal Rule of Civil Procedure 4(m) governs the time limit for service of a 11 summons and complaint. See Williams v. Cnty. of Los Angeles, 2024 WL 2862587, at 12 *1 (9th Cir. June 6, 2024). Rule 4(m) provides that a plaintiff has 90 days to serve a 13 defendant after the complaint is filed, and if a defendant is not served within that time, 14 “the court—on motion or on its own after notice to the plaintiff—must dismiss the action 15 without prejudice against that defendant or order that service be made within a specified 16 time.” Fed. R. Civ. P. 4(m). For cases removed to federal court, 28 U.S.C. § 1448 17 provides that for “any one or more of the defendants [which] has not been served with 18 process or in which the service has not been perfected prior to removal . . . such process 19 or service may be completed or new process issued in the same manner as in cases 20 originally filed in such district court.” 28 U.S.C. § 1448. After a case is removed to 21 federal court, a plaintiff has 90 days from the date of removal “to effect service of 22 process on all defendants, regardless whether the plaintiff failed to serve process in state 23 court.” Whidbee v. Pierce Cnty., 857 F.3d 1019, 1023 (9th Cir. 2017). 24 Here, Plaintiff does not dispute that it has not served Amazon’s Co-Defendants. 25 (Doc. No. 17.) Instead, Plaintiff argues that it has until August 19, 2024, or 90 days 26 following the May 21, 2024 date of removal, to serve process on any previously unserved 27 Defendants. (Id. at 1–3.) On August 19, 2024, Plaintiff did not file a proof of service 28 with the Court to demonstrate that it had served Amazon’s Co-Defendants. 1 The Court orders Plaintiff to properly serve Amazon’s Co-Defendants, including 2 || Fuzhou Feiwo, Elenkerwalker.com, ImagineLife, and Flyworld, by August 26, 2024, and 3 ||to file proofs of service with the Court. Absent a showing of good cause, failure to 4 ||comply with this Order will result in dismissal of Amazon’s Co-Defendants. 5 IT IS SO ORDERED. 6 DATED: August 20, 2024 | | | bal on | JI f 7 MARILYN LNHUFF, District g UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28