Thursday, July 23, 2026
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Panel Says Judge Abused His Discretion in Ordering Same-Day Response to OSC
Ninth Circuit Says Klausner Acted in Absence of Exigent Circumstances
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has reversed an order dismissing an action for failure to serve the defendants timely, finding unreasonableness on the part of District Court Judge R. Gary Klausner of the Central District of California in issuing an order to the plaintiffs to show cause for the delay with compliance demanded that same day.
A panel—comprised of Circuit Judges Jacqueline H. Nguyen and John B. Owens, joined by Senior Circuit Judge Marsha S. Berzon—took action on Tuesday, in a memorandum opinion.
The judges reinstated a lawsuit brought by Emmanuel C. Amuchie, doing business as Caremax Medical, and Nneka Glioma Okereso, against Markwayne Mullin, as secretary of Homeland Security, and United States Secret Service. They are seeking the setting aside of an order in a nonjudicial civil forfeiture proceeding for the seizing of $25,053.66 in a bank account.
Klausner’s Order
On June 26, 2025, Klausner issued an order saying:
“Absent a showing of good cause, an action must be dismissed without prejudice if the summons and complaint are not served on a defendant within 90 days after the complaint is filed. Fed.R.Civ.Proc. 4(m). Generally, defendants must answer the complaint within 21 days after service (60 days if the defendant is the United States). Fed.R.Civ.Proc. 12(a)(1).
“In the present case, it appears that one or more of these time periods has not been met. Accordingly, the court, on its own motion, orders plaintiff(s) to show cause in writing by June 26, 2025, why this action should not be dismissed for lack of prosecution as to certain defendant/s.”
Attorney’s Declaration
On June 30, the plaintiffs’ attorney, Kelechi Charles Emeziem, filed a declaration saying (with paragraph numbers omitted):
“I am the attorney for the plaintiffs/claimants in this action. [¶] I apologize to the court for filing this declaration late. [¶] Unfortunately, my older sister passed away in early in June, 2025 and I travelled to Lagos, Nigeria for her burial rites. I left my office on June 16, 2025 and returned to my office today to find the court order to show cause. [¶] I previously served defendants in March 11, 2025. [¶] I will file a proof of service today to comply with the court’s order. [¶] I apologize to the court for my late response.
On July 1, Klausner, a former Los Angeles Superior Court presiding judge, issued an order reciting his directive of June 26, noting that a response including a certificate of service was not filed until June 30, and declaring:
“The Certificate of Service was incomplete and did not evidence full compliance with Federal Rule of Civil Procedure 4(i). The Court finds no good cause for the delay in service and orders the case dismissed for lack of prosecution.” The Ninth Circuit said in Tuesday’s opinion:
“The district court abused its discretion by requiring, absent exigent circumstances, that plaintiffs respond to the order to show cause on the same day that the court issued it….We agree with plaintiffs that this time frame was insufficient, particularly given that plaintiffs’ counsel was out of the country and the district court did not identify what specifically was deficient about plaintiffs’ proof of service.”
The judges continued:
“The issue was not, as the district court stated, that ‘one or more of [Rule 4(m)’s] time periods has not been met.’ Plaintiffs provided timely proof of service with their motion to set aside the forfeiture. Rather, the issue appears to be that plaintiffs’ service was incomplete.”
They noted that a mailing was made to only one of four addresses to which it should have been directed. The panel said:
“At a minimum, plaintiffs’ attempt at service constitutes excusable neglect, requiring that the district court consider whether to extend the time to complete service as an exercise of discretion….
“Therefore, we vacate the district court’s order dismissing the action. On remand, the court should afford plaintiffs a reasonable amount of time to respond to the order to show cause.”
The case is Amuchie v. Mullin, 25-5516.
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