Filed: Mar. 26, 2014
Latest Update: Mar. 26, 2014
Summary: ORDER C. W. HOFFMAN, Jr., Magistrate Judge. This matter is before the Court on Plaintiffs' Second Ex Parte Motion to Extend Time (#10), filed March 24, 2014. Plaintiffs request an additional ninety (90) day extension of time in order to complete service. Federal Rule of Civil Procedure 4(m) provides: If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that
Summary: ORDER C. W. HOFFMAN, Jr., Magistrate Judge. This matter is before the Court on Plaintiffs' Second Ex Parte Motion to Extend Time (#10), filed March 24, 2014. Plaintiffs request an additional ninety (90) day extension of time in order to complete service. Federal Rule of Civil Procedure 4(m) provides: If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that ..
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ORDER
C. W. HOFFMAN, Jr., Magistrate Judge.
This matter is before the Court on Plaintiffs' Second Ex Parte Motion to Extend Time (#10), filed March 24, 2014.
Plaintiffs request an additional ninety (90) day extension of time in order to complete service. Federal Rule of Civil Procedure 4(m) provides:
If a defendant is not served within 120 days after the complaint is filed, the 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 within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Courts have broad discretion to extend time for service under Rule 4(m). Efaw v. Williams, 473 F.3d 1038, 1041(9th Cir. 2003). The 120-day time period for service contained in Rule 4(m) "operates not as an outer limit subject to reduction, but as an irreducible allowance." Henderson v. United States, 517 U.S. 654, 661 (1996). "On its face, Rule 4(m) does not tie the hands of the district court after the 120day period has expired. Rather, Rule 4(m) explicitly permits a district court to grant an extension of time to serve the complaint after that 120-day period." Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). Moreover, the Advisory Committee Notes to Rule 4(m) state that the rule "explicitly provides that the court shall allow additional time if there is good cause for the plaintiff's failure to effect service in the prescribed 120 days, and authorizes the court to relieve a plaintiff of the consequences of an application of [Rule 4(m)] even if there is no good cause shown." See Fed. R. Civ. P. 4(m), Advisory Committee Notes, 1993 Amendments. Generally, "good cause" is equated with diligence. See Wright & Miller, Federal Practice and Procedure: Civil 3d § 1337.
The complaint in this matter was filed on September 24, 2013. (#1). Thus, the original 120-day period for service would have expired on January 22, 2014. On January 21, 2014, the Court granted Plaintiffs' first ex parte motion to extend time for service extending the time for completion of service to March 24, 2014. See Order (#11). Plaintiffs have successfully served several defendants, but request an additional ninety (90) days to complete service on the remaining defendants. Upon review of the ex parte motion, the undersigned finds that there is good cause for the requested extension based on the diligence of Plaintiffs in their ongoing efforts to effectuate service.
Based on the foregoing and good cause appearing therefore,
IT IS HEREBY ORDERED that Plaintiffs' Second Ex Parte Motion to Extend Time (#16) is granted.
IT IS FURTHER ORDERED that the time period for service under Rule 4(m) is extended until June 23, 2014.
