Essendant Co. v. Chutke
- 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 for want of prosecution, noting that no proof of service was filed within 90 days of the complaint's filing. The court set a seven-day deadline for the plaintiff to respond or voluntarily dismiss the case.
| What the court decided | The model |
|---|---|
Order to show cause why the action should not be dismissed for failure to effect service and for want of prosecution“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 court correctly applied the procedural requirements of Federal Rule of Civil Procedure 4(m) and Civil Local Rule 41.1(a). The docket reflects that the complaint was filed on January 26, 2021, and no proof of service was filed by the time of the order on September 24, 2021, which is well past the 90-day deadline. Issuing a show cause order is the standard procedural mechanism in the Southern District of California to address these deficiencies before entering a final dismissal. |
The order itself: sound — The order is procedurally sound. It correctly identifies the relevant federal and local rules governing service and dismissal for want of prosecution. The court's reliance on the docket to establish the lack of service and inactivity is appropriate for a show cause order. The citation to Link v. Wabash R.R. Co. is slightly aggressive for a show cause order (as Link supports dismissal without notice), but the court is merely citing it as authority for the power to dismiss, not exercising it immediately without notice, which is consistent with the local rule's requirement for notice.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ESSENDANT CO., Case No.: 21-CV-142 TWR (LL)
12 Plaintiff, ORDER FOR PLAINTIFF TO SHOW 13 v. CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR 14 AJIT CHUTKE and DIPTI CHUTKE, FAILURE TO EFFECT SERVICE 15 Defendants. AND FOR WANT OF PROSECUTION 16 18 Rule 4 of the Federal Rules of Civil Procedure provides: 19 [i]f a defendant is not served within 90 days after the complaint is filed, the 20 court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made 21 within a specified time. But if the plaintiff shows good cause for the failure, 22 the court must extend the time for service for an appropriate period.
23 Fed. R. Civ. P. 4(m); see also S.D. Cal. CivLR 4.1(b) (authorizing the Court to order 24 Plaintiff to show cause 100 days following the filing of a complaint when proof of service 25 has not been filed). “In the absence of service of process (or waiver of service by the 26 defendant) . . . a court ordinarily may not exercise power over a party the complaint names 27 as a defendant.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 28 1 (1999); see Crowley v. Bannister, 734 F.3d 967, 974–75 (9th Cir. 2013) (“A federal court 2 is without personal jurisdiction over a defendant unless the defendant has been served in 3 accordance with Fed. R. Civ. P. 4.”) (citations omitted). Further, “[a]ctions or proceedings 4 [that] have been pending in this court for more than six months, without any proceeding or 5 discovery having been taken therein during such period, may, after notice, be dismissed by 6 the Court for want of prosecution.” S.D. Cal. CivLR 41.1(a); see also Fed. R. Civ. P. 41(b) 7 (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant 8 may move to dismiss the action or any claim against it.”); Link v. Wabash R.R. Co., 370 9 U.S. 626, 633 (1962) (“[A] District Court may dismiss a complaint for failure to prosecute 10 even without affording notice of its intention to do so or providing an adversary hearing 11 before acting.”). 12 Here, Plaintiff Essendant Co. filed a Complaint on January 26, 2021. (See generally 13 ECF No. 1.) A review of the docket indicates that Plaintiff has neither filed proof of service 14 of its Complaint on the Defendants nor taken any other action against them since January 15 26, 2021. (See generally Docket.) 16 Accordingly, the Court ORDERS Plaintiff to SHOW CAUSE why this action 17 should not be dismissed for failure to effect service pursuant to Rule 4(m) and Civil Local 18 Rule 4.1(b) and for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) 19 and Civil Local Rule 41.1(a). Plaintiff SHALL FILE a response to this Order, not to 20 exceed ten (10) pages, within seven (7) days of the electronic docketing of this Order. 21 Should Plaintiff file a notice of voluntary dismissal pursuant to Federal Rule of Civil 22 Procedure 41(a) on or before that date, no further response to this Order shall be required. 23 If Plaintiff fails to adequately respond to this Order within the time provided, the Court 24 will enter a final order of dismissal without prejudice for failure to effect service pursuant 25 to Rule 4(m) and Civil Local Rule 4.1(b); failure to prosecute pursuant Rule 41(b) and 26 / / / 27 / / / 28 / / / 1 2 || Civil Local Rule 41.1(a); and failure to comply with the Federal Rules of Civil Procedure, 3 || Civil Local Rules, and this Order pursuant to Civil Local Rule 83.1 (a). 4 IT IS SO ORDERED. 5 6 || Dated: September 24, 2021 —— 7 | Od) (2 re g Honorable Todd W. Robinson 9 United States District Court 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28