Opinion
2:21-cv-00638-KJM-CKD
08-10-2021
Cesar Caballero et al., Plaintiffs, v. Michael Williams et al., Defendants.
ORDER
After reviewing the record, the court finds insufficient evidence plaintiffs effected service on any of the defendants. In California, service by email may be proper but only if a court finds “it is reasonably calculated to give actual notice to the party to be served.” See Cisco Sys. v. Shaitor, No. 18-00480, 2018 U.S. Dist. LEXIS 106893, at *8 (N.D. Cal. June 25, 2018). The court cannot conclude on this record that is so.
The only piece of evidence is that a non-party, counsel for the proposed intervenors, filed a document alleging he effected service by email on two of the five defendants. See Affidavit of Service, ECF No. 21. Assuming without deciding it is appropriate for a non-party to effect service on behalf of plaintiff even when the party is adverse to the plaintiff, there is insufficient evidence on this record to find the service was reasonably calculated to give notice to all parties. See Cisco Sys. v. Shaitor, 2018 U.S. Dist. LEXIS 106893, at *8 (N.D. Cal. June 25, 2018); Amend. Mot. Intervene, Mem. P&A at 2, ECF No. 9 (“Williams, Webb and Caballero are all trespassers to the D-Q lands and have no possessory interest in the lands.”).
If a defendant is not served within 90 days after the complaint is filed, the court must dismiss the action without prejudice absent a showing of good cause. Fed.R.Civ.P. 4(m); see also Jamul Action Comm. v. Chaudhuri, No. 13-01920, 2015 WL 6744531, at *2-4 (E.D. Cal. Nov. 4, 2015). Here, the complaint was filed on April 8, 2021. Compl., ECF No. 1. As it has been more than 90 days since the filing of the complaint, plaintiffs are ordered to show cause within 14 days of the date of this order why the claims against all defendants should not be dismissed under Rule 4(m).
IT IS SO ORDERED.