Report & Recommendation re Dismissal of Defendant Tana
JAMES F. METCALF, Magistrate Judge.
Plaintiff has failed to timely serve Defendant Tana (or Tanna). This matter is before the undersigned magistrate judge on referral for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). Because the appropriate resolution of this matter is potentially dispositive of some of Plaintiff's claims, the undersigned proceeds by way of a Report & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B).
A. Background
Plaintiff commenced this action on January 28, 2019, by filing his Complaint (Doc. 1). On May 14, 2019, the Court screened the Complaint, dismissed various claims and defendants, and ordered service on and answers from Defendants Corizon, Ryan, Buchholz, Johnson, Rainey, Natasha, Gertz, Tana, Smith, Hawley, Gay, Flake, Weigel, Demery, Gowey, Chamberlain, Romero, Scott, Nieblas, Loyd, and Vinson.
Service has since been completed on and/or answers filed by Defendants Corizon, Ryan (substituted with Shinn), Buchholz, Rainey, Gertz, Smith, Gay, Flake, Weigel, Demery, Chamberlain, Romero, Scott, Neiblas and Hawley. Defendants Natasha, Gowey, Vinson, Johnson and Loyd have been dismissed for failure to make timely service. (Order 12/11/19, Doc. 192.) That leaves Defendant Tana.
First attempts at service were returned unexecuted on Defendant Tana on July 22, 2019 (Doc. 57). On Plaintiff's motion (Doc. 48), either a current work address, or if not longer employed a last known address, was ordered from Corizon Inc. for Tana. (Order 8/13/19, Doc. 88) A last known home address was provided under seal on August 27, 2019 (Docs. 100, 105).
Second attempts at service were again attempted on Tana at the provided home address. However, service was returned unexecuted on November 5, 2019 (Doc. 165).
On November 25, 2019, the Court gave Plaintiff 14 days to respond to an order to show cause why Tana should not be dismissed pursuant to Fed. R. Civ. Proc. 4(m) for failure to timely serve. (Order 11/25/19, Doc. 187.)
Plaintiff has responded (Doc. 188) seeking to extend the time for service, and orders for defense counsel to effect service on Defendant at her place of employment. Defendants have not replied.
B. Applicable Standard
Federal Rule of Civil Procedure 4(m) provides:
If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff— must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Local Civil Rule 16.2(b)(2)(B), which governs prisoner civil rights suits, provides that service shall be completed by the "maximum date to effect service, pursuant to Rule 4 of the Federal Rules of Civil Procedure, or sixty (60) days from filing of service order, whichever is later." Under these rules, Plaintiff had through July 15, 2019 to complete service.
Because Rule 4(m) does not establish a cutoff for service, but rather a time after which consideration of dismissal becomes appropriate, the normal standards of "good cause" under Rule 6(b) do not apply.
Rule 4(m) provides two avenues for relief. The first is mandatory: the district court must extend time for service upon a showing of good cause. The second is discretionary: if good cause is not established, the district court may extend time for service upon a showing of excusable neglect. Exercise of discretion to extend time to complete service is appropriate when, for example, a statute-of-limitations bar would operate to prevent re-filing of the action.
Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir.2009) (internal citations omitted).
C. Application of Law
1. No Good Cause
Under the first avenue for relief from delays in service, the court must grant the extension on a showing of "good cause." Rule 4 does not define "good cause." The Ninth Circuit has recognized that "[a]t a minimum, `good cause' means excusable neglect." Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir.1991). Implicit is the determination that some causes don't involve neglect and thus need not be "excused," e.g. diligent but unsuccessful efforts to timely serve.
The undersigned does not find good cause for the failure to effect timely service. Although Plaintiff has taken past steps to effect service, he fails to show any recent or current efforts, or that future steps are planned or possible which are likely to allow service on these defendants to be completed.
Plaintiff proposes Defendant Tana be served at her job. But Plaintiff proffers nothing to show that a work address for Defendant Tana is available. Corizon has represented to the Court that Tana is no longer employed by Corizon. Although it is possible that Tana may have been re-employed at ADOC, either by the prison or the new health care contractor that replaced Corizon, Plaintiff makes not assertions showing that to be the case.
2. No Excusable Neglect
Notwithstanding Rule 4(m), where "good cause does not exist, the court may in its discretion decide whether to dismiss the case without prejudice or extend time for service." Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305 (3rd Cir. 1995). The applicable standard is "a showing of excusable neglect." Lemoge, 587 F.3d at 1198.
"A determination of excusable neglect "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission...[including] the danger of prejudice...length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Pioneer Inv. Services Co. v. Brunswick Associates Ltd. P'ship, 507 U.S. 380, 395 (1993).
In Boudette, the court stated that a plaintiff may be required to show the following factors in order to bring the excuse to the level of good cause: "(a) the party to be served received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed." Boudette, 923 F.2d at 756 (citing Hart v. United States, 817 F.2d 78, 80-81 (9th Cir.1987)).
Plaintiff fails to offer anything to show excusable neglect for his failure to timely serve Tana. He offers no excuse for his inaction in pursuing service, only unsupported assertions that service should be completed.
Here there is a danger of prejudice to a defendant who would be brought in to litigation with a nearly fully exhausted pretrial schedule. The other parties would be prejudiced by delays in completing this proceeding. There is a concomitant disruption to these judicial proceedings. Plaintiff has had almost nine months to complete service on Tana, and has had discovery available to locate Tana since at least July 23, 2019 when the Court's Scheduling Order issued (Doc. 61).
The only thing Plaintiff offers is the potential for expiration of the statute of limitations on his claims against Tana. While a relevant consideration, it does not excuse Plaintiff's neglect.
The undersigned finds no excusable neglect.
IT IS THEREFORE RECOMMENDED, pursuant to Rule 4(m), Defendant Tana be DISMISSED WITHOUT PREJUDICE.
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that "[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages."
