Mann v. Castiel
| Decision Date | 03 August 2010 |
| Docket Number | Civil Action No. 09-2137 (RCL) |
| Parties | John B. MANN, et al., Plaintiffs, v. David CASTIEL, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Ronald B. Patterson, Alexandria, VA, for Plaintiffs.
David Castiel, Washington, DC, pro se.
Cameran Castiel, Washington, DC, pro se.
This matter comes before the Court on a joint motion to dismiss by defendants David and Cameran Castiel and Gerald Helman. These defendants assert that plaintiffs failed to comply with the Court's order of March 9, 2010, which required plaintiffs to file proof of service of process or show cause for their failure to effect timely service pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Upon consideration of the Court's order [8], the plaintiffs' response [9], these defendants' motion [10], the applicable law, and the record herein, the Court will dismiss the case without prejudice.
In 2005, Ellipso, Inc., brought suit against now-plaintiffs John Mann, Mann Technologies, LLC, The Registry Solutions Company, and Robert Patterson. 1 Ellipso, Inc. v. Mann, Case No. 05-cv-1186. On August 5, 2008, the Court dismissed all of Ellipso's claims. ( Ellipso, Inc., [199] Order Dismiss All Remaining Counts.) The Court ordered Ellipso to pay damages on a preliminary injunctive bond and attorneys' fees in two separate orders respectively issued on September 30, 2008, and January 29, 2009. ( Ellipso, Inc., [215] Mem. Op. and Order Granting Mot. Damage; [241] Order Granting Att'ys' Fees.) Ellipso subsequently entered bankruptcy and is currently before the United States Bankruptcy Court for the District of Columbia. In re: Ellipso, Inc., Case No. 09-bk-0148 (Chapter 11). All plaintiffs and defendants David Castiel and Gerald Helman are listed as creditors in the Ellipso bankruptcy. Id.
Plaintiffs jointly initiated the present action against 30 named defendants and an unidentified number of "John Does" on November 16, 2009.2 ( [1] Compl.) Plaintiffs enumerate 28 claims for relief in their complaint, including racketeering, larceny, negligence, unjust enrichment, and unfair trade practices. (Compl. ¶¶ 199-339.) The complaint alleges that the named defendants participated in an elaborate racket-dubbed a "bust-out scheme" by plaintiffs-spearheaded by the now-bankrupt Ellipso, Inc.3 (Compl. ¶¶ 4-11.) Plaintiffs attached a draft copy of the complaint in a Proof of Claim filed in bankruptcy court on October 26, 2009. ( In re: Ellipso, Inc., [348] Mot. Leave Am. Claim 11-1.)
The three moving defendants asked the bankruptcy court to extend Ellipso's automatic stay to enjoin this case on February1, 2010. ( In re: Ellipso, Inc., [671] Emergency Mot. Stay Dist. Ct. RICO Compl.) On March 3, 2010, the bankruptcy court denied that motion. ( In re: Ellipso, Inc., [758] Order Denying Emergency Stay.) The three defendants subsequently moved this Court to stay these proceedings on February 12, 2010. In this motion they claimed that only 3 of the 30 named defendants had been served. ( Id. at 3.) Plaintiffs did not respond to this motion.
On March 9, 2010, the Court ordered plaintiffs to file proof of service of process on the named defendants or show cause by March 22, 2010, as to why this case should not be dismissed for failure to effect timely service. Plaintiffs filed a response on March 25, 2010. )) Plaintiffs did not attach affidavits of service to their response. ( See id.) Plaintiffs ask for a 60-day extension of time to effect service and state in pertinent part that plaintiffs: had served four defendants ( id. at ¶ 1); had issued summonses for four more defendants and sent them out for service ( id. at ¶ 6); and will serve 19 defendants-nine "corporate defendants" and ten "law firm defendants"-pending the conclusion of the Ellipso bankruptcy ( id. at ¶¶ 2-3). Plaintiffs claim that they filed this complaint " inter alia, because of statute of limitations considerations" and may voluntarily dismiss a number of defendants pending the resolution of the bankruptcy proceedings. ( Id. at ¶¶ 7-8.)
On April 7, 2010, the three moving defendants sought dismissal of this case pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. They urge the Court to reject plaintiffs' response as untimely. ( Id. at 2-3.) The three defendants alternatively argue that plaintiffs' response, even if considered, is insufficient to prove service, or good cause to extend time for service and thus fails to comply with the Court's order. ( Id. at 9-10, ¶ 1; 11-13, ¶¶ 3-4.) They admit to "receiv[ing] a copy of a summons and the RICO Complaint." ( Id. at 9, ¶ 1.) The three moving defendants allege that plaintiffs have committed various bad faith acts in the prosecution of this case, including the filing of a frivolous lis pendens against the residence of defendants David and Cameran Castiel (hereinafter "the Castiels"). ( Id. at 7-8.) Plaintiffs did not respond to this motion. The Castiels subsequently moved the Court to cancel the lis pendens and order plaintiffs to post $1,000,000 bond for damages caused by the allegedly frivolous filing on June 7, 2010. ( [15] Mot. to Release and Cancel Lis Pendens (hereinafter "Mot. Cancel").) Plaintiffs did not respond to this motion.
The plaintiffs must effect proper service of process on defendants within 120 days of filing a complaint. Fed.R.Civ.P. 4(m). The plaintiffs have the burden of proving proper service. Fed.R.Civ.P. 4( l ). If they fail to serve a defendant within this time period, the Court must either dismiss the case without prejudice as to that defendant or order that service be made within a specified time. Fed.R.Civ.P. 4(m). The Court may act either sua sponte or on motion made by a party. Id. If the plaintiffs show good cause for their failure to effect proper service, the Court must extend the time to serve for an appropriate period of time. Id. If the plaintiffs seek a good cause time extension, they have the burden to show such cause. Id.; Strong-Fischer v. Peters, 554 F.Supp.2d 19, 23 (D.D.C.2008).
Parties must comply with Court orders or face possible sanction or dismissal. See Fed.R.Civ.P. 11(c), 41(b). This includes orders to act within a specified period of time. See Fed.R.Civ.P. 6(b). If a party fails to act timely on an order, the Court may exercise its discretion to grant a time extension pursuant to Rule 6(b), which states in pertinent part:
Fed.R.Civ.P. 6(b). "Any post deadline extension must be upon motion made, and is permissible only where the failure to meet the deadline was the result of excusable neglect." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 896, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (emphasis in original) (internal quotations omitted). "In the absence of any motion for an extension, the trial court ha[s] no basis on which to exercise [this] discretion." Smith v. District of Columbia, 430 F.3d 450, 457 (D.C.Cir.2005). The Court may not consider an untimely act by a party without first granting an extension of time. See id. ().
The Court ordered plaintiffs to file proof of timely service by March 22, 2010. (Order: 03/09/10.) Plaintiffs responded to this order on March 25th-three days later than ordered. To date they have not asked the Court for an extension of time to respond to this order despite having two distinct opportunities to do so. Although plaintiffs could have moved for an extension in their late response, they did not do so. Plaintiffs moved for an extension of time to effect service on defendants, but this is not the same as a motion to extend time to respond to the Court's order. ( See id. at ¶ 8.) Plaintiffs additionally could have moved for an extension after receiving defendants' motion to dismiss, as the issue of timeliness is front-and-center in the defendants' motion. ( See Mot. Dismiss 2.) Again, plaintiffs did not do so. Without a motion, the Court has no basis on which to grant a time extension. See Smith, 430 F.3d at 457. Both the Supreme Court and the D.C. Circuit Court have made it abundantly clear that Rule 6(b) is to be read and applied strictly. See Lujan, 497 U.S. at 897, 110 S.Ct. 3177; Smith, 430 F.3d at 457. Because it has no basis to extend the time to respond to its order, the Court will not entertain plaintiffs' untimely response. See Smith, 430 F.3d at 457.
The plaintiffs have the burden of proving proper service or waiver thereof. Fed.R.Civ.P. 4( l )(1); see also Light v. Wolf, 816 F.2d 746, 751 (D.C.Cir.1987) . The plaintiffs "must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law." Light, 816 F.2d at 751 (internal quotations and citation omitted). The Rule requires the plaintiffs to serve a proper summons and a copy of the complaint on all defendants-delivered by a person authorized to serveprocess and received by a person authorized to accept it for the defendant-within the time restrictions of Rule...
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