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Foss v. Hayward Industries

United States District Court, D. Massachusetts

May 30, 2019

CYNTHIA FOSS, Plaintiff,
v.
HAYWARD INDUSTRIES, Defendant.

          MEMORANDUM OF DECISION AND ORDER

          TIMOTHY S. HILLMAN DISTRICT JUDGE

         Background

         Cynthia Foss (“Foss” or “Plaintiff”), proceeding pro se, filed a Complaint against Hayward Industries (“Hayward”) on May 7, 2018, together with a motion to proceed in forma pauperis. On May 17, 2018, the Court granted the motion to proceed in forma pauperis and ordered her to file an amended complaint that complies with the basic pleading requirements of the Federal Rules of Civil Procedure, or face dismissal of her action. On June 4, 2018, Foss filed an Amended Complaint; summons were issued to Foss on June 6, 2018. On September 26, 2018, well after the time for effecting service had passed[1], Foss filed a motion for extension of time to complete service and motion to further amend her complaint. See Docket No. 13. Those motions, which were opposed by Hayward, were denied: the motion to further amend the complaint was denied on futility grounds and the motion for extension of time was denied for failure to establish good cause. See Docket No. 17. Foss was notified that her action would be dismissed within twenty-one days unless she could establish that she had timely served Hayward. Instead, on April 12, 2019, Foss filed another motion for extension of time to complete service (Docket No. 19) and another motion for leave to file an amended complaint (Docket No. 20). Despite the pendency of these motions and the Court's notice that her case would be dismissed unless she could establish that she had timely served Hayward, Foss filed a motion for an order that Hayward and other unnamed parties cease and desist use of her “exclusive rights “ (Docket No. 23) and a motion for default judgment (Docket No. 24).[2] For the reasons set forth below, these motions are denied, and this action is dismissed.

         Discussion

         The Motion for Extension of Time For Service

‘Good cause is likely (but not always) to be found when the plaintiff[‘]s failure to complete service in [a] timely fashion is a result of a third person, typically the process server, the defendant has evaded service of the process or engaged in misleading conduct, the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstance[s], or the plaintiff is proceeding pro se or in forma pauperis. Pro se status or any of the other listed explanations for a failure to make timely service, however, is not automatically enough to constitute good cause for purposes of Rule 4(m).'

Egan v. Tenet Health Care, 193 F.Supp.3d 73, 84 (D. Mass. 2016)(citation to quoted case omitted). Foss's second motion for additional time to complete service is denied as she has failed to establish good cause for failing to effect service in a timely manner. Indeed, Foss does not even attempt to provide any justification for seeking to effect service what would now be eight to nine months beyond the time required by this Court's rules[3].

         The Motion To Amend Complaint

         The motion to amend complaint is denied for the reasons stated in Hayward's opposition, i.e., allowance of the amendment would be futile because on the face of the pleading, Foss's claims are barred by the statute of limitations, she fails to allege plausible claims for copyright infringement and any state law claims asserted are preempted. Additionally, based on the allegations in Foss's pleadings, it is unlikely that the Court has personal jurisdiction over Hayward.

         The Motion To Cease and Desist

         Foss requests that the Court order Hayward and “Doe's 1-10, 000, ” who are apparently unnamed persons not party to this case, cease and desist “use of all Plaintiff's exclusive rights.” Given the posture of this case, a protracted discussion of this motion is not warranted. The motion is denied.

         Conclusion

         1. Plaintiff [sic.] Motion To Extend Time For Service (Docket No. 19) is denied;

         2. Plaintiff's Motion For Leave Of [sic.] Amended Complaint ...


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