United States District Court, D. Idaho
PREMIER CAPITAL LIMITED LIABILITY COMPANY, A Delaware limited liability company, Plaintiff,
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
J. LODGE UNITED STATES DISTRICT JUDGE.
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.
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.
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, ¶
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
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.
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.
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.
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).
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.
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.
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