Anton A. Ewing v. Pablo Garces Camus, an individual; and DBOSS FUNDING, LLC
- Proceeding
- district
- Area
- civil
- Panel
- Janis L. Sammartino (author)
Analysis
The court considered Plaintiff's motion for an extension of time to serve Defendants under Federal Rule of Civil Procedure 4(m) following a prior denial of a motion for default judgment. The court granted the motion, ordering Plaintiff to serve the Amended Complaint on both Defendants within thirty days or face dismissal without prejudice.
| What the court decided | The model |
|---|---|
Motion for Extension of Time to Serve Defendant DBOSS FUNDING, LLC granted“The Court will grant Plaintiff a thirty-day extension.” | agree with court The court correctly applied the two-step analysis for Rule 4(m) extensions: first determining if good cause exists (which it found, as the plaintiff reasonably believed service was proper), and second exercising discretion to grant the extension even if good cause were lacking. The court considered the relevant factors, including the length of delay (5 months), the reason for delay, and lack of prejudice to the defendant. The decision to grant a 30-day extension is within the court's discretion and consistent with Ninth Circuit precedent. |
Motion for Extension of Time to Serve Defendant Pablo Garces Camus granted“Plaintiff SHALL SERVE the Amended Complaint on both DBOSS and Camus within thirty (30) days of the date of this Order.” | agree with court The court granted the extension for Camus as well, noting in a footnote that the request was necessary because the prior order set a deadline for service of the First Amended Complaint. The same Rule 4(m) analysis applies. The court's reasoning regarding the lack of prejudice and the reason for delay applies to both defendants. |
The order itself: sound — The order correctly identifies the applicable legal standard for Rule 4(m) extensions, citing the controlling Supreme Court case (Henderson) and the relevant Ninth Circuit precedent (Efaw). It applies the factors from Troxell (cited via Efaw) to the specific facts of the case, noting the length of delay, the reason for the delay, and the lack of prejudice. The conclusion that a 30-day extension is appropriate is well-supported by the record recited in the order.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTON A. EWING, Case No.: 23-CV-2154 JLS (SBC)
12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION FOR EXTENSION OF TIME TO SERVE DEFENDANT 14 PABLO GARCES CAMUS, an DBOSS individual; and DBOSS FUNDING, LLC, 15 Defendants. (ECF No. 15) 16 17 Presently before the Court is Plaintiff Anton A. Ewing’s Motion for Extension of 18 Time to Serve Defendant DBOSS FUNDING, LLC (“Mot.,” ECF No. 15). On July 12, 19 2024, the Court denied without prejudice Plaintiff’s Motion for Default Judgment, 20 reasoning that Plaintiff had failed to (1) properly serve DBOSS FUNDING, LLC 21 (“DBOSS”) and (2) demonstrate that the Court could exercise personal jurisdiction over 22 either Defendant. ECF No. 13 (the “Order”) at 8, 10–14. 23 Plaintiff now concedes his previous attempt at service of DBOSS was ineffective. 24 See Mot. at 1. Plaintiff therefore seeks an extension of time to serve DBOSS anew.1 Id. at 25 26 27 1 Plaintiff also requests additional time “to serve Defendant [Pablo Garces Camus (“Camus”)] with the 28 First Amended Complaint under Rule 5.” Mot. at 2. This request is necessary because the Order set a 1 || 1-2. 2 Federal Rule of Civil Procedure 4(m) sets an “irreducible allowance” of ninety days 3 || for a Plaintiff to complete service. Henderson v. United States, 517 U.S. 654, 661 (1996); 4 || Fed. R. Civ. P. 4(m). Ifa plaintiff fails to effect service within that time frame, Rule 4(m) 5 ||(1) “requires a district court to grant an extension of time when the plaintiff shows good 6 ||cause” for their delay in service and (2) “permits the district court to grant an extension 7 || even in the absence of good cause.” Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007) 8 ||(emphases omitted). When exercising their discretion to grant or deny an extension, courts 9 || “may consider factors ‘like a statute of limitations bar, prejudice to the defendant, actual 10 || notice of a lawsuit, and eventual service.’” Jd. at 1041 (quoting Troxell v. Fedders of N. 11 ||Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998)). 12 The Court will grant Plaintiff a thirty-day extension. Plaintiff has exceeded Rule 13 ||4(m)’s ninety-day deadline by five months, which, though extensive, does not compare to 14 || the length of delay that has led courts to deny extensions of time in the past. Cf id. (holding 15 ||the grant of an extension was an abuse of discretion where the plaintiff failed to effect 16 || service within seven years). Moreover, Plaintiff's delay is not without reason—he believed 17 ||service was proper until he was informed otherwise by this Court. Lastly, there is no 18 || indication that either Defendant has suffered prejudice stemming from Plaintiffs delay. 19 Accordingly, Plaintiff SHALL SERVE the Amended Complaint on both DBOSS 20 and Camus within thirty (30) days of the date of this Order. If Plaintiff fails to so act, the 21 ||Court may dismiss this action without prejudice pursuant to Rule 4(m). 22 IT IS SO ORDERED. 23 Dated: July 18, 2024 psi L. Lo meeaitie- on. Janis L. Sammartino United States District Judge 25 26 27 28