Naglich v. Pfenex Inc.
- Proceeding
- district
- Area
- civil
- Panel
- Todd W. Robinson (author)
Analysis
The court ordered the plaintiff to show cause why the action should not be dismissed for failure to effect service and failure to prosecute, noting that no proof of service was filed within the required timeframe and no other action was taken. The court set a seven-day deadline for the plaintiff to respond or voluntarily dismiss, warning that failure to respond will result in dismissal without prejudice.
| What the court decided | The model |
|---|---|
Order to show cause for failure to effect service and failure to prosecute“Accordingly, the Court ORDERS Plaintiff to SHOW CAUSE why this action should not be dismissed for failure to effect service pursuant to Rule 4(m) and Civil Local Rule 4.1(b) and for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and Civil Local Rule 41.1(a).” | agree with court The order correctly identifies that the plaintiff failed to serve the defendants within the 90-day period mandated by Rule 4(m) and failed to prosecute the action as required by Rule 41(b) and local rules. Issuing a show cause order is a standard procedural mechanism to allow the plaintiff to explain the delay or demonstrate good cause before the court exercises its discretion to dismiss. The court's reliance on the docket to establish the lack of activity is appropriate. |
The order itself: sound — The order is procedurally sound. It correctly cites the relevant federal and local rules governing service and failure to prosecute. The factual basis (lack of proof of service and inactivity on the docket) is clearly stated. The remedy (show cause order) is appropriate and provides due process by allowing the plaintiff to respond before dismissal. The court correctly notes that dismissal would be without prejudice, preserving the plaintiff's right to refile.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELIZABETH NAGLICH, Case No.: 20-CV-1803 TWR (AGS)
12 Plaintiff, ORDER FOR PLAINTIFF TO SHOW 13 v. CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR 14 PFENEX INC., JASON GRENFELL- FAILURE TO EFFECT SERVICE GARDNER, EVAN B. 15 AND FOR WANT OF SCHIMMELPENNINK, PHILLIP M. PROSECUTION 16 SCHNEIDER, ROBIN D. CAMPBELL, MAGDA MARQUET, LORIANNE 17 MASUOKA, and JOHN M. TAYLOR, 18 Defendants. 19 20 Rule 4 of the Federal Rules of Civil Procedure provides: 21 [i]f a defendant is not served within 90 days after the complaint is filed, the 22 court—on motion or on its own after notice to the plaintiff—must dismiss the 23 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, 24 the court must extend the time for service for an appropriate period. 25 Fed. R. Civ. P. 4(m); see also S.D. Cal. CivLR 4.1(b) (authorizing the Court to order 26 Plaintiff to show cause 100 days following the filing of a complaint when proof of service 27 has not been filed). “In the absence of service of process (or waiver of service by the 28 1 defendant) . . . a court ordinarily may not exercise power over a party the complaint names 2 as a defendant.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 3 (1999); see Crowley v. Bannister, 734 F.3d 967, 974–75 (9th Cir. 2013) (“A federal court 4 is without personal jurisdiction over a defendant unless the defendant has been served in 5 accordance with Fed. R. Civ. P. 4.”) (citations omitted). Further, “[a]ctions or proceedings 6 [that] have been pending in this court for more than six months, without any proceeding or 7 discovery having been taken therein during such period, may, after notice, be dismissed by 8 the Court for want of prosecution.” S.D. Cal. CivLR 41.1(a); see also Fed. R. Civ. P. 41(b) 9 (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant 10 may move to dismiss the action or any claim against it.”); Link v. Wabash R.R. Co., 370 11 U.S. 626, 633 (1962) (“[A] District Court may dismiss a complaint for failure to prosecute 12 even without affording notice of its intention to do so or providing an adversary hearing 13 before acting.”). 14 Here, Plaintiff Elizabeth Naglich filed a Complaint on September 14, 2020. (See 15 generally ECF No. 1.) A review of the docket indicates that Plaintiff has neither filed proof 16 of service of her Complaint on the Defendants nor taken any other action against them 17 since September 14, 2020. (See generally Docket.) 18 Accordingly, the Court ORDERS Plaintiff to SHOW CAUSE why this action 19 should not be dismissed for failure to effect service pursuant to Rule 4(m) and Civil Local 20 Rule 4.1(b) and for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) 21 and Civil Local Rule 41.1(a). Plaintiff SHALL FILE a response to this Order, not to 22 exceed ten (10) pages, within seven (7) days of the electronic docketing of this Order. 23 Should Plaintiff file a notice of voluntary dismissal pursuant to Federal Rule of Civil 24 Procedure 41(a) on or before that date, no further response to this Order shall be required. 25 If Plaintiff fails to adequately respond to this Order within the time provided, the Court 26 will enter a final order of dismissal without prejudice for failure to effect service pursuant 27 to Rule 4(m) and Civil Local Rule 4.1(b); failure to prosecute pursuant Rule 41(b) and 28 1 || Civil Local Rule 41.1(a); and failure to comply with the Federal Rules of Civil Procedure, 2 || Civil Local Rules, and this Order pursuant to Civil Local Rule 83.1(a). 3 IT IS SO ORDERED. 4 Dated: September 16, 2021 TED 12, (om 6 Honorable Todd W. Robinson United States District Court 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28