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Deckers v. Comfy - Minute Order

Deckers v. Comfy - Minute Order

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Published by slburstein
Deckers v. Comfy - Minute Order
Deckers v. Comfy - Minute Order

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Published by: slburstein on Dec 19, 2013
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Case No.CV 13-3486 PA (CWx)DateDecember 16, 2013TitleDeckers Outdoor Corporation v. Comfy Fluffy, Inc.Present: The Honorable PERCY ANDERSON, UNITED STATES DISTRICT JUDGEPaul SongcoNot ReportedN/ADeputy ClerkCourt ReporterTape No.Attorneys Present for Plaintiffs:Attorneys Present for Defendants: NoneNone
IN CHAMBERS — COURT ORDER Before the Court is an Ex Parte Application for Enlargement of Time to Serve Defendant by E-Mail (“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 serveDefendant. For the reasons that follow, the Court denies Plaintiff’s Ex Parte Application. Plaintiff asserts that additional time is required because Plaintiff has not been able to serveDefendant 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 Canadiancompany, through Crowe Foreign Services (“Crowe”), a process server in Canada. The Ex ParteApplication alleges that Crowe informed Plaintiff on November 21, 2013 that “the sheriff was unable toeffectuate 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,Plaintiff’s counsel spoke with one of Defendant’s representatives (“Representative”) by telephone aboutresolving this action. (Ex Parte Appl. 2; Chan Decl. ¶ 8.) The Representative emailed Plaintiff’scounsel on December 8, 2013, informing her that Defendant was in the process of obtaining thenecessary information, and asked Plaintiff’s counsel to send Defendant the waiver of summons. (ChanDecl. ¶ 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 eventhough it is aware of this pending action. Absent a showing of good cause, an action must be dismissed without prejudice if the summonsand 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)
Page 1 of 2
Case 2:13-cv-03486-PA-CW Document 15 Filed 12/16/13 Page 1 of 2 Page ID #:111

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