United States District Court, E.D. Washington
BRADFORD P. GOODMAN and PETER W. GOODMAN, Plaintiffs,
HEAT AND FROST INSULATORS AND ALLIED WORKERS LOCAL 82, et al., Defendants.
ORDER DENYING MOTION TO RECONSIDER
O. RICE Chief United States District Judge
THE COURT is Plaintiffs' Motion to Reconsider. ECF No.
32. This matter was submitted for consideration without oral
argument. The Court has reviewed the record and files herein,
and is fully informed. For the reasons discussed below,
Plaintiffs' Motion to Reconsider (ECF No. 32) is
January 6, 2017, Plaintiffs' filed this Complaint, but
failed to show that Defendants were served with Summonses and
a copy of the Complaint. As a result, on June 12, 2017, the
Court issued an Order to Show Cause directing Plaintiffs to
demonstrate on or before June 26, 2017, why this matter
should not be dismissed for failure to properly serve
Defendants. ECF No. 9; see also Fed. R. Civ. P.
did not respond to the Order to Show Cause nor file proof of
service showing Defendants had been properly served with
Summonses and the Complaint. Thus, on July 6, 2017, the Court
dismissed this action without prejudice. ECF No. 10.
then moved the Court to vacate the dismissal order,
explaining that they did not timely receive their mail.
See ECF Nos. 11-12. Although Plaintiffs' filing
(see ECF No. 11) titled “Concerning Documents
9 & 10 from The Court Order to Show Cause Order of
Dismissal Without Prejudice, ” purported to respond to
the Court's Order to Show Cause (see ECF No. 9),
Plaintiffs did not show proper service nor did they show good
cause for additional time to do so.
the Court liberally construed that filing and Plaintiffs'
“Summary version of Argument to Reconsider Order to
Dismiss Without Prejudice” as Federal Rule of Civil
Procedure 60(b) Motions to Reconsider and Vacate the Order of
Dismissal. ECF Nos. 11-12. On August 4, 2017, the Court
granted Plaintiffs' construed Fed.R.Civ.P. 60(b) Motions
to Reconsider and Vacate Order of Dismissal and re-opened the
case. ECF No. 14. The Court extended the time for Plaintiffs
to respond to the Court's Order to Show Cause (ECF No. 9)
why Plaintiffs have not served Defendants with the Summonses
and Complaint pursuant to Federal Rule of Civil Procedure
4(m). Plaintiffs were ordered to file their response by
September 5, 2017. ECF No. 14.
August 9, 2017, Plaintiffs filed a Notice of Appeal to the
Ninth Circuit Court of Appeals, depriving this Court of
jurisdiction to proceed. ECF No. 15. On September 7, 2017,
the Ninth Circuit dismissed the appeal by Order and Mandate.
ECF No. 26. That Order and Mandate returned jurisdiction back
to this Court.
November 27, 2017, the Court ordered Plaintiffs again to show
cause by December 29, 2017, why this matter should not be
dismissed for failure to properly serve Defendants. ECF No.
28. On December 6, 2017, Plaintiffs responded to the Third
Order to Show Cause. ECF No. 29. Plaintiffs contend that they
sent the Summonses to Defendants by mail with confirmed
delivery on October 25 and 26, 2017. Id. at 1.
Plaintiffs also assert that they emailed the Summonses on
October 26, 2017 to the three Defendants. Id.
Plaintiffs ask the Court what they have not done to fulfill
the Second Order to Show Cause. Id.
January 2, 2018, the Court dismissed Plaintiffs'
Complaint without prejudice, explaining the requirements of
Federal Rule of Civil Procedure 4(d). ECF No. 30. The Court
found that Plaintiffs failed to show good cause why they
waited 9 months to attempt to serve Defendants. Id.
instant motion, Plaintiffs request the Court reconsider its
dismissal, arguing that they served the Defendants. ECF No.
to Plaintiffs' assertion, Plaintiffs have failed to
properly serve Defendants according to Federal Rule of Civil
Procedure 4(b). See ECF No. 32 at 1. A plaintiff
must serve a defendant by following state law procedure,
delivering a copy to the individual personally, or leaving a
copy at the individual's dwelling place with someone of
suitable age and discretion who resides there. Fed.R.Civ.P.
4(e); see also Fed. R. Civ. P. 4(h) (for serving a
corporation, partnership, or association). Merely mailing a
summons and complaint to a defendant is not sufficient to
satisfy this rule.
have failed to show good cause for not serving Defendants
within 90 days after filing the complaint. Fed.R.Civ.P.
4(c)(1) and (m). The Court cannot extend time for service if
a plaintiff fails to show good cause. Id. The Court
recognizes Plaintiffs' frustration that the case did not
reach the merits and that they are making good faith efforts
to comply. ECF No. 32 at 2. Yet, pro se plaintiffs
are still bound by the rules of procedure. Ghazali v.
Moran, 46 F.3d 52, 54 (9th Cir. 1995). A good faith
effort does not satisfy the good cause requirement ...