Opinion
No. C 03-04156 JSW.
October 26, 2004
ORDER DENYING DEFENDANTS' MOTION TO DISMISS
Now before the Court is defendants Captain Troy Abney, Officer Shawn Harvey, Sergeant Sean Patton, and Officer Lianne Barbour's (collectively "Defendants") Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). Having carefully reviewed the parties' papers and considered their arguments and the relevant legal authority, and good cause appearing, the Court hereby DENIES Defendants' Motion to Dismiss.
Defendants Abney and Harvey filed the instant motion on February 26, 2004. On April 6, 2004, defendants Patton and Barbour filed a joinder in the motion to dismiss.
The instant motion appears to be a motion to dismiss solely under Federal Rule of Civil Procedure 12(b)(5). To the extent Defendants also intended to move to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court declines to address Defendants' motion on this basis due to Defendants' failure to present any argument or authority in support thereof.
STATEMENT OF FACTS
This lawsuit arises from Plaintiffs' arrests at a demonstration on the Golden Gate Bridge on May 25, 2002. The arrest citations listed only the first initial and last names of the four California Highway Patrol officers who arrested Plaintiffs. Plaintiffs filed their complaint in the Superior Court of California, County of San Francisco, on May 6, 2003, naming as defendants the State of California ("State") and the four individual officers, Abney, Harvey, Patton and Barbour. On August 15, 2003, Plaintiffs served the State with a summons and complaint. On August 26, 2003, in response to the state court's Order to Show Cause why the case should not be dismissed for lack of service, Plaintiffs stated that they would serve the State with interrogatories to obtain Defendants' home addresses. Before Plaintiffs served such interrogatories, the State of California removed the action to this Court on September 11, 2003.
Defendants' Request for Judicial Notice of the Plaintiffs' response to the Order to Show Cause is GRANTED pursuant to Federal Rule of Evidence 201.
Plaintiffs' Requests for Judicial Notice are GRANTED pursuant to Federal Rule of Evidence 201.
On January 22, 2004, the State filed a motion for summary judgment, along with supporting declarations from Abney and Harvey. Plaintiffs then had the full names of two of the individual officers. On February 4, 2004, Plaintiffs sent a letter asking the State if it would agree to accept service for Defendants. Plaintiffs received no answer to their letter. On February 6, 2004, Plaintiffs and the State participated in a case management conference. At this time, Plaintiffs served the State with special interrogatories requesting Defendants' home addresses. The State objected to these requests. Plaintiffs then hired a private investigator to locate addresses for Abney and Harvey, which was successful. Plaintiffs' attorney attested that "[p]rior to this time, the private investigator hired by Plaintiffs could not obtain the location of the individual defendants, as the names were too common and generated too many potential locations." (Declaration of Daniel H. Qualls in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss, ¶ 9). Plaintiffs served Abney and Harvey on February 9, 2004. At a subsequent meeting on March 15, 2004, the State agreed to provide work addresses for Barbour and Patton. On March 17, 2004, Plaintiffs served Barbour, and five days later served Patton.
ANALYSIS
Federal law governs procedure in removed actions. Fed.R.Civ.P. 81(c). Federal Rule of Civil Procedure 4(m) ("Rule 4(m)") provides that service must be effected within 120 days after filing of the complaint. In a removed action, the 120-day period commences upon removal. Lee v. City of Beaumont, 12 F.3d 933, 937 (9th Cir. 1993). Under Rule 4(m), if service of the summons and complaint is not made upon a defendant within 120 days, the Court "shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period." Fed.R.Civ.P. 4(m).
Rule 4(m) requires a two-step analysis. If a plaintiff shows good cause for the defective service, then the court must extend the time period in which to serve the defendant. In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). If no good cause is shown, the 1993 amendments to Rule 4(m) permit, but do not require, the court to extend the time for service. Id.; see also Mann v. American Airlines, 324 F.3d 1088, 1091 (9th Cir. 2003) (citing Fed.R.Civ.P. 4, Advisory Committee Note to 1993 Amendments, Subdivision (m)). The court's discretion under Rule 4(m) is broad. In re Sheehan, 253 F.3d at 513. Such discretionary relief may be justified, for example, "if the applicable statute of limitations would bar the refiled action." Mann, 324 F.3d at 1091.
"At a minimum, 'good cause' means excusable neglect." Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1990). Attorney inadvertence does not qualify as good cause. Wei v. State of Hawaii, 763 F.2d 370, 372 (9th Cir. 1985). "The rule is intended to force parties and their attorneys to be diligent in prosecuting their causes of action." Id. Here, Plaintiffs did not attempt to serve any of the individual defendants until after the 120 days passed. Plaintiffs argue they were precluded from timely serving Defendants because they did not have their addresses or full names within the 120-day time period. Plaintiffs further argue that the State, the employer for Defendants, did not cooperate and refused to provide Defendants' work addresses earlier. However, although Plaintiffs stated an intent to propound discovery requesting Defendants' addresses, Plaintiffs did not actually ask the State for the addresses until after the 120-day time period had already expired. Thus, Plaintiffs were not sufficiently diligent to support a finding of good cause.
However, the Court will exercise its discretion to grant relief to Plaintiffs and extend the time to serve nunc pro tunc. Although a dismissal for untimely service is without prejudice, Plaintiffs would be barred from refiling by the statutes of limitations. U.S. v. 2,164 Watches, More or Less Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 773 (9th Cir. 2004) (running of statute of limitations "is a factor supporting the discretionary granting of an extension of time to make service") (quoting Boley v. Kaymark, 123 F.3d 756, 759 (3d Cir. 1997) (emphasis in original). The statute of limitations for Plaintiffs' claims is at most two years. Cal. Code Civ. Proc. § 335.1 (two year statute of limitations for personal injury claims); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004) (California's two-year statute of limitations for personal injury actions applies to 42 U.S.C. § 1983 suits in federal court); Cal. Code Civ. Proc. 340(c) (one-year statute of limitations for defamation claims). The incidents leading up to this lawsuit occurred on May 25, 2002, over two years ago. Therefore, if the Court dismissed Plaintiffs' complaint against Defendants, Plaintiffs's claims would be barred by the statutes of limitations.
Exercising discretion to grant an extension of the time to serve is particularly warranted in this case where Defendants concede that they had actual notice of Plaintiffs' complaint well within the 120-day time period. Moreover, Defendants will not suffer prejudice from the untimely service. Possible prejudice resulting from a delay in service would include loss of evidence, dimming of witnesses' memories, or financial commitments based on not being sued, Matasareanu v. Williams, 183 F.R.D. 242, 247 (C.D. Cal. 1998), none of which Defendants can show. Defendants have access to all the discovery taken to date, and in fact, have been participating in the discovery. Each of individual defendants has already been deposed. Plaintiffs have also been deposed already. At the Case Management Conference on October 22, 2004, the Court vacated the trial date. Thus, Defendants will have ample time to develop and present their defenses. The Court will therefore exercise its discretion to extend time for service nunc pro tunc.
Defendants' counsel stated at the hearing held on October 22, 2004 that Defendants all had notice by October 2003 at the latest.
CONCLUSION
The Court hereby GRANTS an extension of time to serve Defendants nunc pro tunc andDENIES Defendants' Motion to Dismiss Plaintiffs' complaint.
IT IS SO ORDERED.