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Premier Capital Limited Liability Co. v. TCS Idaho, LLC

United States District Court, D. Idaho

October 13, 2017

PREMIER CAPITAL LIMITED LIABILITY COMPANY, A Delaware limited liability company, Plaintiff,
v.
TCS IDAHO, LLC, a Delaware limited liability company; JEAN-PIERRE A. BOESPFLUG, an individual; and ALFREDO MIGUEL AFIF, an indvidual, Defendants.

          MEMORANDUM DECISION AND ORDER

          EDWARD J. LODGE UNITED STATES DISTRICT JUDGE.

         Currently pending before the Court are: (1) Plaintiff's Motion to Retain Case and Extend Time for Filing Litigation Plan and Scheduling Conference (“Motion to Extend”) (Dkt. 8) and Defendant Alfredo Miguel Afif's Motion to Dismiss (Dkt. 9.) Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record and that oral argument is unnecessary. Accordingly, because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument. D. Idaho Loc. Civ. R. 7.1. As explained more fully below, the Court denies Plaintiff's Motion to Extend (Dkt. 8) and grants Defendant Alfredo Miguel Afif's Motion to Dismiss (Dkt. 9.)

         BACKGROUND

         On March 30, 2016, Plaintiff filed the instant Complaint against three Defendants: (1) TCS Idaho, LLC; (2) Jean-Pierre A. Boespflug; and (3) Alfredo Miguel Afif. (Dkt. 1-2). The Complaint was originally filed in Idaho state court. Id. Plaintiff alleges that the Defendants are each jointly and severally liable for the sum of $250, 737. Id.

         On June 9, 2016, Defendant Aziz removed the action to federal court based on federal jurisdiction. (Dkt. 1, ¶8.) Afif further alleged he had not properly been served with process but he did receive a copy of the complaint and summons, which were mailed to Afif's U.S. accountant. (Dkt. 1, ¶ 11.)

         On June 10, 2016, the Court issued a Litigation Order requesting that the parties file a Joint Litigation Plan and setting a scheduling conference on July 29, 2016. (Dkt. 3.) On July 28, 2016, the day before the scheduling conference, Plaintiff filed a Motion to Extend Time for Filing Litigation Plan and Scheduling Conference. (Dkt. 4.) Plaintiff made the motion because “the principal defendant, Alfredo Miguel Afif, ha[d] not been served with process” and “did not consent to proceed[] . . . until he . . . [was] served.” Id. When requesting more time to accomplish service of process, Plaintiff recognized that Defendant Afif was a Mexican national and “will need to be served in accordance with the Hague Service Convention.” Id.

         Also on July 29, 2016, the Court granted Plaintiff's requested extension and reset the scheduling conference for December 2, 2016, approximately four months later. (Dkt. 5.) Over three months later, on November 4, 2016, the first summons was issued in this case. (Dkt. 6.) The Summons was issued as to Defendant Afif. Id. No other summons appear to have been issued and no other party has appeared in the case to date, except for Defendant Afif who has appeared solely to for the purpose of challenging service of process.

         On May 8, 2017, without any further contact from the Plaintiff and approximately five months after the time set for the scheduling conference, the Court issued a Docket Entry Notice of Dismissal for lack of prosecution. (Dkt. 7.) The Court notified Plaintiff that the case would be dismissed pursuant to District of Idaho Local Civil Rule 41.1 for lack of prosecution unless Plaintiff good demonstrate good cause for the Court to retain the case on the docket. Id. Plaintiff responded with the instant Motion to Extend (Dkt. 8) and Defendant responded with a Motion to Dismiss (Dkt. 11).

         In sum, the instant case has been pending in this Court since June 9, 2016 and was originally filed in state court on March 30, 3016. Plaintiff has had over 18 months to effectuate service of process and has failed to do so.

         DISCUSSION

         The Court has discretion to dismiss an action “[i]f the plaintiff fails to prosecute or comply with these rules or a court order.” Fed.R.Civ.P. 41(b). In addition, the Court may dismiss an action on the basis of insufficient service of process. Fed.R.Civ.P. 12(b)(5).

         In this case, the parties agree that Defendant Afif has not been served with process. (Dkt. 8) (“the principal defendant, Alfredo Miguel Afif, has not been served with process”). Accordingly, dismissal is warranted unless the Court finds good cause to extend the time for service of process pursuant to Rule 4.

         Rule 4(m) provides a plaintiff with 90 days to accomplish service of process. “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- must dismiss the action without prejudice against the defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m). If the plaintiff demonstrates good cause for the failure, the Court must extend the time for service for an appropriate period.” Id.

         In this case, the Court provided Plaintiff with notice that the case would be dismissed if the plaintiff did not show “good cause” by May 22, 2017. (Dkt. 7.) Plaintiff responded to the Court's order and also to Defendant's Motion to Dismiss (Dkts. 8, 10.) Nonetheless, Plaintiff has failed to ...


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