Flores v. Doe Agent 1

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 ANTHONY FLORES, Case No.: 3:24-cv-01189-JES-MSB 12 Plaintiff, ORDER: 13 v. (1) DISSOLVING ORDER TO SHOW 14 DOE AGENT 1, et al., CAUSE; and 15 Defendants. (2) GRANTING MOTION TO [16] AMEND/CORRECT THE 17 COMPLAINT [18] [ECF No. 13] [19] 20 On November 6, 2024, the Court issued an Order to Show Cause (“OSC”) why the 21 case should not be dismissed for failure to serve Defendant, Doe Agent 1. ECF No. 4. 22 Plaintiff was ordered to file a written response on or before November 22, 2024. Id. On 23 November 22, 2024, Plaintiff filed a response to the Court’s OSC detailing reasons for the 24 delay and informing the Court that initially Plaintiff could not identify Doe Agent 1 and 25 filed an amended complaint (“FAC”) naming the United States as a defendant and has 26 completed service on the United States. ECF No. at 11. Further, Plaintiff argues that the 27 filing of the amended complaint restarts the time period for service under Federal Rules of [28] 1 Civil Procedure 4. Id. In the alternative, Plaintiff argues that he has shown good cause to 2 extend the time for effectuating service upon Doe Agent 1. 3 The filing of an amended complaint does not reset the 90-day service deadlines for 4 those defendants previously named in the original complaint. Otherwise, a plaintiff could 5 repeatedly file amended complaints to extend the time for service indefinitely. Mitchell v. 6 County of Nye, No. 2:15-cv-01714-APG-NJK, 2016 WL 6782740 , at *2 (D. Nev. Nov. 14, 7 2016); See also McGuckin v. United States, 918 F.2d 811, 813 (9th Cir. 1990). In McGurkin, 8 the Ninth Circuit allowed service within 120 days of filing of the complaint, but only 9 because the plaintiff added the United States as a new defendant in the amended complaint. [10] Id. Here, Doe Agent 1 was named in the original complaint. ECF No. 1. Filing the FAC 11 does not restart the service period for Doe Agent 1. See, e.g. Lycurgan, Inc. v. Griffith, No. 12 14-CV-548 JLS (KSC), 2017 WL 4680143 , at *3 (S.D. Cal. Oct. 18, 2017); Thai v. United 13 States, No. 15-CV-583-WQH (NLS), 2016 WL 1585135 , at *2 (S.D. Cal. Mar. 15, 2016); 14 Torres v. Colvin, No. CV-13-2300-PHX-LOA, 2014 WL 2683296 , at *1 (D. Ariz. June 13, 15 2014). 16 However, the Court will extend the 90-day time limit of Rule 4(m) as Plaintiff has 17 shown good cause for the delay in service for Doe Agent 1. Plaintiff has made numerous 18 efforts to identify Doe Agent 1 and has filed a motion to file a Second Amended Complaint 19 (“SAC”) to add Marco Andrade in place of Doe Agent 1. ECF No. 13. The United States 20 does not oppose Plaintiff’s motion to file the SAC. As such, Plaintiff’s motion to file the 21 SAC is GRANTED. Plaintiff shall promptly file the proposed SAC and a new summons 22 shall issue forthwith for Plaintiff to execute service no later than February 5, 2025. 23 Further, the Court now DISSOLVES the OSC. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / I IT IS SO ORDERED. 2 Dated: January 13, 2025 3 4 we Su 4 4 Honorable James E. Simmons Jr. 5 United States District Judge