Eric Della Santa was recently successful in a motion to dismiss a plaintiff’s complaint against a client for failure to serve the complaint within two years.
Under the California procedural statutes, a plaintiff cannot intentionally engage in a protracted delay of the prosecution of his case. A failure to even serve the summons and complaint against a defendant within two years after it is filed provides discretionary grounds for a court to dismiss the action.
In this matter, the service was made within three years, which only gave the Court discretion to dismiss the plaintiff’s complaint. Dismissals in such circumstances are disfavored. However, Eric argued that his client’s ability to defend himself had been significantly prejudiced by the plaintiff’s delay, and that no good cause had so far been given for the failure to timely effect service.
The Court ultimately agreed with Eric, granted the motion and the complaint against the client was dismissed with prejudice.