Order and Report and Recommendation
JAMES F. METCALF, Magistrate Judge.
BACKGROUND
Under consideration is Plaintiff's Motion to Extend Time to Complete Service, filed June 29, 2015 (Doc. 81). Plaintiff seeks to extend the time for service, and to obtain service on Defendants Manzano, Johonson, and Hendrix via the Maricopa County Sheriff's Office Legal Liaison. No response to the motion has been filed by Defendant Modi.
The Court's Scheduling Order, filed October 24, 2014 (Doc. 31) advised Plaintiff that "[p]ursuant to Local Rule of Civil Procedure 16.2(b)(2)(B), the presumptive maximum service date is August 12, 2014 (the later of 120 days from the filing date or 60 days from the service Order date)." (Order 10/24/14, Doc. 31.) Subsequently, on January 23, 2015, Plaintiff filed his Second Amended Complaint adding Defendants Manzano, Johonson, and Hendrix.
In an Order filed April 27, 2015 (Doc. 63), the Court observed that service on defendants Hendrix, Jhonson, and Manzano were all returned unexecuted on March 17, 2015. (Docs. 55, 56, 57.) The Court further observed that Plaintiff did not appear to be continuing to prosecute his claims against these defendants, and under the applicable rules, service was due to be completed by Tuesday, May 26, 2015. Plaintiff was ordered to show cause why they should not be dismissed for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b).
On April 30, 2015, Plaintiff responded (Doc. 66) asserting his having sent service packets, and delays from his sentencing on unrelated matters.
Plaintiff took no further action to purse service on these unserved defendants.
On June 4, 2015, the Court issued an order observing the intervening expiration of the service deadline, on May 26, 2015. Plaintiff was ordered to show cause why the unserved defendants should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m). (Order 6/4/15, Doc. 70.) In response, Plaintiff filed a Motion to Complete Service (Doc. 74), which the Court construed as a motion to extend the time for service and set a response deadline. The Court further extended the deadline for a response to the Order to Show Cause. (Order 6/8/15, Doc. 76.) On June 11, 2015, Plaintiff filed a Response (Doc. 77) to the Order to Show Cause.
On June 23, 2015, without a response from Defendant, the Court denied the Motion to Complete Service, finding that Plaintiff had proffered no good cause for his delay in completing service beyond his having earlier provided service packets. The Court further declined to make a discretionary extension of time for service based on the prejudice to any newly joined defendant in light of the advanced status of the case, and absence of any notice to the unserved defendants. (Order 6/23/15, Doc. 79.)
ORDER
One week later, on June 29, 2015, Plaintiff filed the instant Motion to Extend Time to Complete Service (Doc. 81), again seeking to extend the time for service. Plaintiff argues he has acted "to the best of his knowledge," and asks for consideration of the "complications of confinement." He again references having sent the original service packets in March of this year, complains that he was relocated in March, 2015, and his general diligence in this matter. He asserts he has notified the defendants of a possible civil action through his grievances, asserts that any insufficiency in the service packets should be attributed to errors by the jail in forwarding his service packets, that he does not have access to e-filing, and his response to the order to show cause was delayed through a clerical error. He asserts that the address for all three defendants is "MCSO Legal Liaison," and asks for 30 days to complete service at that address.
The Court finds nothing in this latest motion to justify an expansion of the time for service. In deciding whether to dismiss a case or extend the time period for service under Rule 4(m), the court employs a two-step analysis. Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007). First, if there is a showing of good cause for the delay, the court must extend the time period. Id. Second, if there is no showing of good cause, the court has discretion to either dismiss without prejudice or extend the time period. Id.
Plaintiff still points to no good cause for his delays in timely seeking service. At best, he points to one week in March, 2015 while he was being relocated, and delays after the deadline for service had already expired. He points to nothing in the intervening two months to explain his failure to take any action to pursue timely service. He makes vague references to delays in his various filings. But the relevant delay is not in what Plaintiff has done, but in what he has not done, i.e. taken affirmative action to complete service on the unserved defendants.
Moreover, he still proffers no hope for completion of service. At best, he urges service on Defendants via the MCSO Legal Liaison. But Plaintiff proffers no reason to believe such service attempts will be successful. For example, he does not suggest that the unserved defendants work at that office, or that the MCSO Legal Liaison's office has been authorized to accept service for these defendants.
Further, in the interim, all the pretrial deadlines have expired, save only the final pretrial motions deadline. Defendant Modi's Motion for Summary Judgment is now fully briefed and pending before District Judge Logan.
Under these circumstances, the undersigned still can find no good cause to justify an extension of time for service, nor a basis for a discretionary extension.
IT IS THEREFORE ORDERED that Plaintiff's Motion to Extend Time to Complete Service, filed June 29, 2015 (Doc. 81) is DENIED.
REPORT AND RECOMMENDATION
Failure to Timely Serve — 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 the foregoing rules, service in this matter should have been completed by Tuesday, May 26, 2015. As discussed hereinabove, Plaintiff has repeated notice of this deadline, and repeated opportunities to show good cause to extend it.
Dismissal Appropriate — Dismissal of a party is appropriate where a plaintiff fails to show good cause for delays in service. See Walker v. Sumner, 14 F.3d 1415 (9th Cir. 1994) (upholding dismissal where no showing of good cause for delay in service).
At a minimum, "good cause" means excusable neglect. A plaintiff may also be required to show the following: (a) the party to be served personally 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 v. Barnette, 923 F.2d 754, 756 (9th Cir.1991).
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). "[I]f good cause is not established, the district court may extend time for service upon a showing of excusable neglect." Lemoge v. U.S., 587 F.3d 1188, 1198 (9th Cir. 2009).
The undersigned has determined hereinabove that good cause to extend has not been show, and consequently, Plaintiff's motion to extend the time for service has been denied.
To determine whether a plaintiff demonstrates excusable neglect to avoid dismissal, courts use the test set forth in Pioneer Inv. Services Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 394 (1993), and Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.1997). See Lemoge, 587 F.3d at 1198 (holding that plaintiff had established excusable neglect for the purposes of Rule 4(m) via the Pioneer-Briones test). The Pioneer-Briones test is as follows:
[T]he determination of whether neglect is excusable is an equitable one that depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings, (3) the reason for the delay; and (4) whether the movant acted in good faith.
Bateman v. U.S. Postal Service, 231 F.3d 1220, 1223-1224 (9th Cir.2000). Here, all but the last factor call for a finding of no excusable neglect.
Danger of Prejudice to Unserved Defendant — Defendants, if eventually served, would be brought into litigation in which all deadlines either are expired or soon will be. Although Plaintiff contends Defendants received notice of an expected suit, he proffers nothing to show they have received notice that they have in fact been sued.
Length of Delay and Impact — Over five months have expired since service on these defendants was returned unexecuted. To extend the time for service, and to introduce a new defendant would effectively mean resetting the schedule in this case. This case is already over 17 months old, the time for service expired over two months ago, and the case is nearing completion, with all but the final pretrial motions deadline expired. Prejudice to the opposing parties would result from the 11th hour addition of a new defendant, on a separate claim not being litigated by the other parties.
Reason for Delay — Plaintiff's single attempt at pursuing service on these defendants does not demonstrate diligence, nor provide sufficient reason to explain the extent of the delay. Rather, the delay is attributable to simple neglect. Plaintiff points to delays with his filings, but shows no efforts to identify accurate addresses for service or any efforts to complete service.
Good faith — There appears no reason to conclude that Plaintiff has acted in bad faith, as opposed to simply being dilatory.
Summary — Plaintiff has failed to show good cause or excusable neglect to justify an extension of time to complete service on Defendants Manzano, Johonson, and Hendrix.
IT IS THEREFORE RECOMMENDED that, pursuant to Rule 4(m), Defendants Manzano, Johonson, and Hendrix 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).
