Toni Drouin v. Contra Costa County

Northern District of California, cand-4:2015-cv-03694

ORDER Regarding Service of Defendants Deputy Geist and Brenda Baldwin. Signed by Judge Kandis A. Westmore on 3/10/2017. (kawlc2, COURT STAFF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TONI DROUIN, Case No. 15-cv-03694-KAW 8 Plaintiff, ORDER REGARDING SERVICE OF 9 v. DEFENDANTS DEPUTY GEIST AND BRENDA BALDWIN 10 CONTRA COSTA COUNTY, et al., 11 Defendants. 12 Northern District of California United States District Court 13 On March 3, 2017, Defendant Contra Costa County filed a statement, asserting that 14 individual Defendants Deputy Geist and Brenda Baldwin were not properly served. (Dkt. No. 71.) 15 Specifically, Defendants asserts that with respect to all individual defendants, the service on Stacy 16 Boyd, Clerk of the Contra Costa County Board of Supervisors, was not in compliance with 17 Federal Rule of Civil Procedure 4 or California state law because "Ms. Boyd was not authorized to 18 accept service on behalf of these individuals and none of these individuals work in the office of 19 the Clerk of the Board." (Id. at 2.) Defendants' counsel then notified Plaintiff's counsel of the 20 defective service, and agreed to contact the individual Defendants to determine if he was 21 authorized to accept service on their behalf. (Id.) Defendants' counsel received authority to accept 22 service from all individual Defendants except Defendant Geist (who no longer worked for Contra 23 Costa County) and Defendant Baldwin. (Id.) There is no evidence in the record that Plaintiff has 24 attempted to serve Defendants Geist and Baldwin since. 25 Defendant Contra Costa County requests that the Court dismiss Defendants Geist and 26 Baldwin sua sponte, pursuant to Federal Rule of Civil Procedure 4(m). (Id. at 3.) Federal Rule of 27 Civil Procedure 4(m) states: 28 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 1 -- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the 2 plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.1 3 Accordingly, the Court ORDERS Plaintiff to explain, by March 20, 2017, why 4 Defendants Geist and Baldwin should not be dismissed, given Defendants' assertion that Plaintiff 5 has failed to properly serve these Defendants. 6 IT IS SO ORDERED. 7 Dated: March 10, 2017 8 __________________________________ KANDIS A. WESTMORE 9 United States Magistrate Judge 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 1 Effective December 1, 2015, Federal Rule of Civil Procedure 4(m) was amended to reduce the 23 time for service from 120 days to 90 days. Although Plaintiff's complaint was filed on August 12, 2015, prior to the effective date, the operative complaint was filed on November 17, 2016, after 24 the effective date. In such a scenario, several courts have applied the 90-day service period to defendants newly named in the amended complaint filed after the effective date. See Thai v. 25 United States, Case No.: 15cv583 WQH (NLS), 2016 U.S. Dist. LEXIS 52465, at *7 (S.D. Cal. Mar. 15, 2016) (concluding that where the initial complaint was filed on March 14, 2015 and the 26 amended complaint filed on December 27, 2015, "[f]or the Defendants named in the SAC, they are subject to the 90-day service period, as the SAC was filed after the December 1, 2015 change 27 to Rule 4(m)); George v. Prof'l Disposables Int'l, Inc., 15-CV-3385 (RA) (BCM), 2016 U.S. Dist. LEXIS 118556, at *14 n.8 ("While plaintiff's April 30, 2015 Complaint was subject to a 120-day 28 service window, the Amended Complaint, filed on December 22, 2015, was subject to the new 90- day service window"). 2