Case 2:13-cv-03486-PA-CW Document 15 Filed 12/16/13 Page 1 of 2 Page ID #:111 JS-6

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. Title CV 13-3486 PA (CWx) Deckers Outdoor Corporation v. Comfy Fluffy, Inc. Date December 16, 2013

Present: The Honorable Paul Songco Deputy Clerk

PERCY ANDERSON, UNITED STATES DISTRICT JUDGE Not Reported Court Reporter N/A Tape No.

Attorneys Present for Plaintiffs: None Proceedings:

Attorneys Present for Defendants: None

IN CHAMBERS COURT ORDER

Before the Court is an Ex Parte Application for Enlargement of Time to Serve Defendant by EMail (Ex Parte Application) filed by plaintiff Deckers Outdoor Corporation (Plaintiff) on December 12, 2013. (Docket No. 14.) On August 21, 2013, Plaintiff filed an Ex Parte Application for Enlargement of Time to Serve Defendant, (Docket No. 8), which this Court granted on August 23, 2013. (Docket No. 9.) Plaintiff was given until December 11, 2013 to serve defendant Comfy Fluffy, Inc. (Defendant) with the Summons and Complaint. Plaintiff now seeks to extend the time frame to serve Defendant. For the reasons that follow, the Court denies Plaintiffs Ex Parte Application. Plaintiff asserts that additional time is required because Plaintiff has not been able to serve Defendant despite numerous attempts to do so. Specifically, Plaintiff first attempted to serve Defendant by mail on May 17, 2013, but did not receive a response from Defendant. (Chan Decl. 3.) After receiving additional time to serve Defendant, Plaintiff next attempted to serve Defendant, a Canadian company, through Crowe Foreign Services (Crowe), a process server in Canada. The Ex Parte Application alleges that Crowe informed Plaintiff on November 21, 2013 that the sheriff was unable to effectuate service on Defendant because the address provided was a residential address and the owner was out of the country. (See Ex Parte Appl. 2, Ex. 2; Chan Decl. 7.) On December 4, 2013, Plaintiffs counsel spoke with one of Defendants representatives (Representative) by telephone about resolving this action. (Ex Parte Appl. 2; Chan Decl. 8.) The Representative emailed Plaintiffs counsel on December 8, 2013, informing her that Defendant was in the process of obtaining the necessary information, and asked Plaintiffs counsel to send Defendant the waiver of summons. (Chan Decl. 9.) As of December 12, 2013, Plaintiff has not received an executed waiver from Defendant. (Id.) Plaintiff also alleges that Defendant has continued to engage in counterfeiting activities even though it is aware of this pending action. Absent a showing of good cause, an action must be dismissed without prejudice if the summons and complaint are not served on a defendant within 120 days after the complaint is filed. Fed. R. Civ. P. 4(m). At a minimum, good cause means excusable neglect. Oyama v. Sheehan, 253 F.3d 507, 512 (9th Cir. 2001) (quoting Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991)). To determine whether neglect is excusable, the court examines at least four factors: (1) the danger of prejudice to the opposing
CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 2

Case 2:13-cv-03486-PA-CW Document 15 Filed 12/16/13 Page 2 of 2 Page ID #:112 JS-6

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL Case No. Title CV 13-3486 PA (CWx) Deckers Outdoor Corporation v. Comfy Fluffy, Inc. Date December 16, 2013

party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009). In addition to excusable neglect, a plaintiff may also be required to show (a) the party to be served received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed. Oyama, 253 F.3d at 512 (citations omitted). In this case, Plaintiff has failed to show good cause for failing to timely serve Defendant. Despite being granted an additional 90 days to serve Defendant, Plaintiff did not act diligently during this time period. Although Plaintiff was informed on November 21, 2013 that Crowe was unable to effectuate service on Defendant, Plaintiff did not speak with Defendants representative until December 4, 2008. Moreover, although the email Plaintiffs counsel received on December 8, 2013 - only 3 days prior to the deadline - did not provide any information regarding how to serve Defendant or agreeing to waive service, Plaintiff failed to take any further action to ensure that Defendant was served by December 11, 2013. Instead, Plaintiff waited until after the deadline expired to file this Ex Parte Application requesting the Court to allow Plaintiff extra time to serve Defendant by email.1/ Finally, Plaintiff provides no explanation as to why it did not attempt to serve Defendant by email prior to December 11, 2013. Moreover, the Court is not convinced that email service in this case is reasonably calculated to provide actual notice to the defendant. Because Plaintiffs conduct does not constitute excusable neglect, see Patriot Rail Corp. v. Sierra R.R. Co., No. 2:09-cv-0009-TLN-AC, 2013 WL 3745231, at *2-3 (E.D. Cal. July 15, 2013), the Court finds that Plaintiff did not show the good cause for failing to timely serve Defendant. Accordingly, the Court denies Plaintiffs Ex Parte Application for Enlargement of Time to Serve Defendant by E-Mail. Pursuant to Federal Rule of Civil Procedure 4(m), Plaintiffs claims against Defendant are dismissed without prejudice. IT IS SO ORDERED.

1/

In addition, the Courts May 16, 2013 Order, (Docket No. 6), clearly states that any applications to extend the time to file a required document must be filed in advance of the date due.
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