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Truong v. Lvny Funding LLC

United States District Court, Ninth Circuit

September 27, 2013

Tiffany Truong Plaintiff,
v.
LVNV Funding LLC; Blatt Hasenmiller, Leibsker & Moore, LLC; and Katherine J. Merolo, Defendants.

ORDER

JAMES A. TEILBORG, Senior District Judge.

On December 20, 2012, this Court required Plaintiff to appear on January 10, 2013 and show cause why this case should not be dismissed for failure to serve. The Court held the hearing on January 10, 2013, and Plaintiff did not appear, nor did Plaintiff file anything. As a result, the Court dismissed this case due to Plaintiff's failure to properly serve (in accordance with this Court's order of August 14, 2012) any of the Defendants within the time limits of Federal Rule of Civil Procedure 4(m).

Over three months later, Plaintiff filed a motion for reconsideration of the dismissal. Because judgment was never entered, the motion is not time barred under Federal Rule of Civil Procedure 59 or 60. However, motions for reconsideration must be filed under Local Rule Civil 7.2(g)(2) within 14 days of the order on which the party seeks reconsideration. Based on this rule, Plaintiff's motion for reconsideration is untimely.

Moreover, Plaintiff's motion fails on the merits. Specifically, the Court held the January 10, 2013 hearing to address service. In her motion for reconsideration, Plaintiff's sole argument as to service is:

Plaintiff asks the Court's [sic] to allow Plaintiff to provide appropriate service on defendants. Plaintiff promises to obey all future court orders and deadlines. Plaintiff needs the assistance of the Court in order to pursue Plaintiff's FDCPA and FRAUD complaint. Therefore, Plaintiff asks that the Court consider reopening Plaintiff's case.

Doc. 14.

There are two avenues for relief under Rule 4(m) ( see Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir.2009)):

• "The first is mandatory[.]" Id. (citation and footnote omitted). Based upon the plain language of that Rule, "the district court must extend time for service upon a showing of good cause." Id. (citation and footnote omitted).

• "The second is discretionary [.]" Id. (citation omitted). Notwithstanding Rule 4(m), "if good cause is not established, the district court may extend time for service upon a showing of excusable neglect." Id. (citation omitted).

Engaging in the "two-step analysis" which the Ninth Circuit "requires[, ]" the court will first consider whether on this record there is good cause, thus mandating an extension of time for service under Rule 4(m). See In re Sheehan, 253 F.3d at 512. Courts must determine whether good cause "has been shown on a case by case basis." Id. (citation omitted).

Trueman v. Johnson, 2011 WL 6721327, *3 (D. Ariz. December 21, 2011).

A. Good Cause

To establish good cause, ...


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