“[U]nder the terms 3 of the rule, the court’s discretion is broad.”
How later courts described this case
- “[U]nder the terms 3 of the rule, the court’s discretion is broad.”
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JAMES ALLEN ROBERTSON, No. 1:20-cv-01332-BAM
12 Plaintiff,
ORDER GRANTING IN PART AND
13 v. DENYING IN PART PLAINTIFF’S MOTION
TO EXTEND TIME FOR SERVICE OF
14 COMMISSIONER OF SOCIAL
SUMMONS
SECURITY,
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Defendant.
(Doc. No. 7.)
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17 Currently before the Court is Plaintiff James Allen Robertson’s (“Plaintiff”) motion to
18 extend the time for service of the summons on Defendant Commissioner of Social Security
19 (“Defendant”) for thirty (30) days. (Doc. No. 7.) For the reasons that follow, Plaintiff’s motion is
20 GRANTED IN PART and DENIED IN PART.
21 Rule 4 of the Federal Rules of Civil Procedure governs service of the summons and
22 complaint and provides, in relevant part:
23 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
24 prejudice against the defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must extend the time
25 for service for an appropriate period.
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Fed. R. Civ. P. 4(m). Thus, a showing of good cause requires the Court to grant an extension of
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the time for service. Id. However, absent a showing of good cause, the Court also has discretion
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1 under Rule 4(m) to either order that service be made within a specified time or to dismiss the action
2 without prejudice. See id.; In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001) (“[U]nder the terms
3 of the rule, the court’s discretion is broad.”); Sebastian Brown Productions, LLC v. Muzooka, Inc.,
4 143 F.Supp.3d 1026, 1036 (N.D. Cal. 2015).
5 Here, more than 90 days have elapsed since Plaintiff’s complaint was filed on September
6 18, 2020, and Plaintiff has not yet served Defendant with the summons and complaint. In the
7 Motion, Plaintiff requests that time of service be extended thirty (30) days, due to an error in tasking
8 that service to be completed by Plaintiff’s attorney. (Doc. No. 7.) As a result, service of the
9 complaint has been delayed.
10 Having considered the moving papers, the Court will exercise its discretion that service be
11 made by no later than January 30, 2021. However, the Court’s order is not intended to address
12 whether or not good cause exists for Plaintiff’s failure to effectuate service within 90 days, or
13 whether the delay in service from the September 18, 2020 filing of the complaint through the filing
14 of this motion is excused.
15 Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED:
16 1. Plaintiff’s Motion to Extend Time for Service of Summons (Doc. No. 7.) is
17 GRANTED IN PART and DENIED IN PART; and
18 2. Plaintiff shall serve Defendant with the summons and complaint by no later than
19 January 30, 2021.
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IT IS SO ORDERED.
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22 Dated: December 30, 2020 /s/ Barbara A. McAuliffe _
UNITED STATES MAGISTRATE JUDGE
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