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7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 MARTHA ZEPEDA OLIVARES, et al., Case No. 1:23-cv-01575-JLT-SAB 11 Plaintiffs, ORDER RE PLAINTIFF’S EX PARTE 12 APPLICATION FOR ORDER ALLOWING v. SERVICE 13 CITY OF FRESNO, et al., ORDER SETTING INITIAL SCHEDULING 14 CONFERENCE FOR MAY 30, 2024 Defendants. 15 (ECF No. 28)

16 17 Plaintiffs initiated this action on November 7, 2023 against Defendants City of Fresno 18 and Unknown Law Enforcement Officers. (ECF No. 1.) The mandatory scheduling conference 19 was initially set to occur on February 20, 2024. (ECF No. 5.) However, by February 8, 2024, 20 Plaintiffs had not filed proofs of service and no Defendant had filed a responsive pleading. 21 Accordingly, the Court issued on order continuing the scheduling conference to March 26, 2024 22 and requiring Plaintiffs to file a notice of status of service no later than February 13, 2024. (ECF 23 No. 22.) 24 On February 13, 2024, Plaintiffs informed the Court that they filed this action on 25 November 7, 2023 for the purpose of securing an ex parte order permitting Plaintiffs to perform 26 a private autopsy on the decedent. (ECF No. 24.) Plaintiffs proffered that when they filed the 27 complaint in November 2023, they “informed the Fresno City Attorney’s Office that the City of Fresno was intentionally not being served yet…and that an amended complaint would be filed as 1 a matter of right pursuant to Federal Rule of Civil Procedure 15(a) prior to service.” (Id. at 2.) 2 Plaintiffs also stated that they anticipated obtaining unspecified “necessary provisional orders 3 from the Fresno Superior Court in May 2024.” (Id.) Plaintiffs informed the Court that an 4 amended complaint would be filed on or before May 31, 2024, which they planned to serve on 5 Defendants by June 30, 2024. (Id.) Plaintiffs summarily requested in the status report that this 6 Court issue an order allowing Plaintiffs until May 31, 2024 to file an amended complaint without 7 citing a federal or local rule supporting such relief. (Id. at 2.) Plaintiffs did not request an 8 extension of time to serve the operative complaint (ECF No. 1) pursuant to Rule 4(m). 9 The Court issued an order on February 14, 2024 affording Plaintiffs the opportunity to 10 request such relief to avoid mandatory dismissal under Rule 4(m), or to properly request any 11 other relief supported by good cause no later than February 23, 2024. (ECF No. 25.) 12 On February 23, 2024, Plaintiffs filed a first amended complaint in this action without 13 requesting leave from the Court. (ECF No. 26.) Plaintiffs also filed a summons confirming an 14 unspecified complaint was served on Defendant City of Fresno. (ECF No. 27.) Plaintiffs then 15 filed the instant ex parte application for an order allowing service beyond the 90-day time period 16 pursuant to Federal Rule of Civil Procedure 4(m). (ECF No. 28.) 17 In the instant ex parte application, Plaintiffs request that this Court “allow[] service of 18 process on the City of Fresno beyond the 90 day period specified in Rule 4(m).” (Id. at 1.) 19 However, Plaintiffs proffer they have already effected service on “the only named defendant, the 20 City of Fresno….” (Id.) Plaintiffs further state that “they decided in view of the Court’s recent 21 order to amend and serve their complaint to the best of their current ability. Obviously, further 22 amendments and additional parties will be named in this case, but service of process has now 23 been completed.” (ECF No. 28 at 2-3.) 24 Plaintiffs, however, fail to specify in the instant application which complaint has already 25 been served on “the only named defendant, the City of Fresno.” (Id. at 1, 3.) The Court notes 26 the City of Fresno is the only named defendant in the complaint filed on November 7, 2023; 27 however, the filing entitled “first amended complaint” also names “Police Chief Paco 1 (ECF No. 1) on Defendant City of Fresno on February 23, 2024 (ECF No. 27), it is unclear to the 2 Court what relief Plaintiffs request by way of the instant ex parte application. (ECF No. 28.) 3 Plaintiffs offer no authority in the instant motion supporting their request that this Court 4 retroactively grant an extension of time to serve a complaint that has already been served. If the 5 complaint that Plaintiffs served on Defendant City of Fresno on February 23, 2024 was the 6 operative complaint in this action (ECF No. 1), Plaintiffs have already effected service and 7 therefore do not require an extension of time to effect service under Rule 4(m). The Court will 8 not retroactively sanction an extension of time by way of the instant ex parte application. 9 However, Plaintiffs have further compounded the instant matter by filing a “first 10 amended complaint” without requesting leave to amend pursuant to Rule 15(a). (ECF No. 26.) 11 Plaintiffs state within the instant application that they “decided in view of the Court’s recent 12 order to amend and serve their Complaint….” (ECF No. 28 at 2-3.) As previously stated, the 13 Court is unaware which complaint Plaintiffs decided to serve on Defendant City of Fresno on 14 February 23, 2024. (See ECF No. 27.) Plaintiffs were not entitled to amend the complaint filed 15 on November 7, 2023 “as a matter of course” because it was not amended within 21 days after it 16 was served on Defendants under Rule 15(a)(1)(A). Waters v. Howard Sommers Towing, Inc., 17 No. CV105296CASAJWX,

, at *3 (C.D. Cal. Apr. 11, 2011). “In all other 18 cases, a party may amend its pleading only with the opposing party's written consent or the 19 court's leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P. 20 15(a)(2). Plaintiffs have not filed a motion for leave to amend the complaint. 21 The Court finds Plaintiffs could have filed a motion for leave to amend the complaint as 22 an alternative to a request for an extension under Rule 4(m) in response to the Court’s February 23 14, 2024 order requesting a proper motion for relief. The Court notes the reasons proffered in 24 the instant ex parte application show good cause to grant leave to amend, if requested. 25 Therefore, to promote judicial efficiency and to avoid unnecessarily re-serving Defendants that 26 have potentially already been served with the “first amended complaint” filed on February 23, 27 2024, the Court, on its own motion, retroactively grants leave for Plaintiffs’ filing of the first 1 Plaintiffs are admonished to follow the Federal Rules of Civil Procedure in litigating this 2 | action going forward so as to avoid unnecessary orders by the Court. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Plaintiffs’ ex parte application for a retroactive extension of time to serve the 5 November 7, 2023 complaint (ECF No. 1) is DENIED; 6 2. Plaintiffs are retroactively GRANTED leave to amend the complaint pursuant to 7 Rule 15(a)(2) and the complaint filed on February 23, 2024 (ECF No. 26) shall 8 serve as Plaintiff's first amended complaint and the operative complaint in this 9 action; 10 3. If Plaintiffs have not yet effected service of the first amended complaint (ECF No. 11 26), Plaintiffs shall serve the first amended complaint on Defendants within 21 12 days of entry of this order. If Plaintiffs have already served the first amended 13 complaint, Defendants shall file their responses in accordance with the dates 14 service was effected pursuant to the Federal Rules of Civil Procedure; and 15 A, An initial scheduling conference is set in this matter for May 30, 2024, at 2:30 16 p.m., in Courtroom 9. 17 18 IT IS SO ORDERED. F- 2 ee 19 | Dated: _March 6, 2024 _ OO UNITED STATES MAGISTRATE JUDGE

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