Opinion

Johnson v. Dizdar

Court
District Court, N.D. California
Filed
Jan 20, 2021
Cited by
0 cases
Authority
More cited than 18.7%

exercising discretion to grant an extension of time for service

How later courts described this case

  • exercising discretion to grant an extension of time for service

Written by the judges who cited it.

The opinion

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8 UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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12 SCOTT JOHNSON, Case No. 20-CV-08314-LHK

13 Plaintiff, ORDER GRANTING IN PART

MOTION FOR ADMINISTRATIVE

14 v. RELIEF REQUESTING EXTENSION

OF TIME TO COMPLETE SERVICE

15 MARY ANN DIZDAR,

Re: Dkt. No. 11

16 Defendant.

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18 On January 19, 2021, Plaintiff filed the instant motion for administrative relief requesting

19 an extension of time to complete service on Defendant. ECF No. 11. The current deadline to serve

20 Defendant is January 25, 2021.1 Plaintiffs’ propose a 90-day extension so that the new deadline is

21 April 26, 2021. To support the instant motion, Plaintiff attaches documents which show that

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23 1 The scheduling order in this case sets the deadline for serving Defendant 60 days after the filing

of the complaint. ECF No. 5. The complaint was filed on November 25, 2020. Adding 60 days to

24 that filing date, Plaintiff’s counsel avers that January 24, 2021 is the service deadline. ECF

25 No. 11-1 ¶ 9. However, January 24, 2021 is a Sunday. Under Federal Rule of Civil Procedure

6(a)(1)(C), when a deadline stated in days falls on a weekend or legal holiday, the “period

26 continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”

27 Thus, Monday, January 25, 2021 is in fact the service deadline.

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1 (1) Plaintiff hired a contractor who has tried to serve Defendant about eight times; and

2 (2) Defendant’s counsel is aware of this lawsuit. ECF Nos. 11-2 (service attempts), 11-4 (emails

3 with Defendant’s counsel).

4 The Court “must extend time for service upon a showing of good cause” by

5 Plaintiff. Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013). In the Ninth Circuit, “[a]t a

6 minimum, ‘good cause’ means excusable neglect.” In re Sheehan, 253 F.3d 507, 512 (9th Cir.

7 2001). Additionally, “a plaintiff may be required to show the following factors in order to bring

8 the excuse to the level of good cause: ‘(a) the party to be served received actual notice of the

9 lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced

10 if his complaint were dismissed.’” Id. (quoting Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir.

11 1991)). Further, “[a] defendant’s affirmative actions, which frustrate service, may constitute good

12 cause for failure to effect timely service.” Hearst v. West, 31 F. App’x 366, 368 (9th Cir. 2002).

13 Plaintiff has failed to show good cause. He fails to allege how he would be prejudiced—let

14 alone “severely prejudiced”—if his complaint were dismissed. In re Sheehan, 253 F.3d at 512.

15 Plaintiff fails to allege, for instance, that a statute of limitations would prevent him from refiling

16 his complaint if were dismissed for untimely service. See, e.g., Efaw v. Williams, 473 F.3d 1038,

17 1041 (9th Cir.2007) (citing statute of limitations as a reason to extend time for service). Nor does

18 Plaintiff show that Defendant’s “affirmative actions[] frustrate[d] service.” Hearst, 31 F. App’x at

19 368. Though Plaintiff avers that Defendant’s counsel “agreed to accept service on behalf on [sic]

20 the [D]efendant,” it is unclear whether Defendant’s counsel actually agreed. Rather, Defendant’s

21 counsel emailed Plaintiff’s counsel an ambiguous statement: “Yes we can accept service via post

22 mail only on behalf of the client.” ECF No. 11-4 (emphasis added). Plaintiff’s counsel then

23 emailed Defendant’s counsel a form for waiving service, which Defendant did not return. Id.

24 Although Plaintiff has not established good cause, the Court exercises its discretion to

25 grant a 30-day extension of the time for service. As noted, Defendant has actual notice of the

26 lawsuit, and has had such notice since at least December 28, 2020. See ECF No. 11-4. There is no

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1 evidence that Defendant would be prejudiced by a 30-day delay in service. Moreover, Plaintiffs

2 || have diligently attempted service on Defendant. See ECF Nos. 11-2. Thus, the Court finds that an

3 extension of service will best serve the interests of the “just, speedy and efficient disposition” of

4 Plaintiff’s claims. See, e.g., Sebastian Brown Prods., LLC v. Muzooka, Inc., 143 F. Supp. 3d 1026,

5 1036 (N.D. Cal. 2015) (exercising discretion to grant an extension of time for service).

6 Accordingly, the Court GRANTS IN PART Plaintiff’s motion for administrative relief

7 || requesting an extension of time to complete service on Defendant. Plaintiff shall properly serve

8 Defendant within 30 days of this Order. Service should include the summons, complaint,

9 scheduling order, General Order No. 56 and its Second Amended Notice, and any supplemental

10 || filings required by Civil Local Rule 4-2. No further extensions shall be granted.

11 IT IS SO ORDERED.

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13 Dated: January 20, 2021

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ag

LUCY d KOH

IS United States District Judge

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28 Case No. 20-CV-08314-LHK

ORDER GRANTING IN PART MOTION FOR ADMINISTRATIVE RELIEF REQUESTING EXTENSION OF

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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