Opinion
CV-22-00953-PHX-SMB (ASB)
12-13-2023
Aaron Jackson, Plaintiff, v. City of Phoenix, et al., Defendants.
REPORT AND RECOMMENDATION
HONORABLE ALISON S. BACHUS UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Plaintiff's Motion to Extend Time for Service of the Third Amended Complaint on Officer Gomez (Doc. 63). The motion is fully briefed and ripe for disposition.
A. Background
The record demonstrates that Plaintiff filed two motions as to Officer Gomez. (Docs. 58, 61.) The Court denied both motions. (Docs. 60, 62.) In its Order denying the first motion, the Court observed that it was Plaintiff's burden to show service by various methods was “impracticable” before permitting service by publication. (Doc. 60.) The Court found Plaintiff had failed to make that showing. (Id.) The Court noted that it was not inclined to approve service by publication without a skip trace being completed. (Id. at 2.)
A week later, Plaintiff filed his second motion for service by publication. (Doc. 61.) Plaintiff attached to his second motion the results of a skip trace. (Id.) In its Order denying the second motion, the Court concluded the skip trace was insufficient because Plaintiff had not made a minimal, discernible effort to obtain biographical information about Officer Gomez such that a meaningful attempt at a skip trace could be accomplished. (Doc. 62 at 2.) The Court further indicated its concern for ensuring due process. (Id.)
The instant Motion by Plaintiff followed.
B. The Parties' Briefing on the Instant Motion
Plaintiff moves this Court for a 16-day extension of time to serve the Third Amended Complaint (“TAC”) upon Defendant Officer Gomez. (Doc. 63.) In support of the Motion, Plaintiff avers service by publication will not be finished until November 29, 2023. (Id. at 2.) Therefore, Plaintiff contends good cause exists to extend time for service. (Id.)
Defendant City of Phoenix opposes the Motion. (Doc. 64.) Defendant City of Phoenix essentially moves for dismissal as to Officer Gomez for failure to serve, see id., but no motion to dismiss has been filed. In their filing, the City of Phoenix argues that Plaintiff has failed to demonstrate justifiable excuse for failing to serve Officer Gomez. (Id.)
Defendant City of Phoenix was the employer of Defendant Officer Gomez. Plaintiff has not challenged the ability of the City of Phoenix to oppose a motion that concerns one of the co-defendants of the City of Phoenix. The Court notes that its recommendation on disposition of the Motion would be the same, regardless of whether a response to the Motion had been filed. The controlling case law compels the same result for the reasons described below in this Order.
In his Reply, Plaintiff contends he need not show “justifiable excuse” for failing to serve. (Doc. 66.) Rather, Plaintiff argues, “good cause” must be shown, he has shown that good cause. (Id.) In support, Plaintiff cites Farm Bureau Prop. & Cas. Ins. Co. v. Hewlett-Packard Co., 2015 WL 2345655 (D. Ariz. May 15, 2015). That case, though, is inapposite. In Farm Bureau, Judge Campbell analyzed a motion to dismiss under Rule 12(b)(5) in a removal case. The court observed that “a federal court applies state law when the service occurred before removal, but was defective for reasons such as being past a state-law deadline.” Id. at *1 (internal citations omitted). By contrast, the case at bar is not a removal case. Plaintiff brought this federal civil rights action in federal court. Therefore, the Court does not apply Arizona state law when determining the sufficiency of service of process. See id.
C. Applicable Law
In this action, which was brought under a federal statute, the Court applies Rule 4 of the Federal Rules of Civil Procedure. Rule 4(m) governs the time limit for service of a complaint. That Rule provides:
If a defendant is not served within 90 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.
Thus, the question before the Court is whether Plaintiff has shown good cause for the failure to timely serve Officer Gomez. If good cause is shown, time must be extended. Id.
As opposed to the case law cited by Plaintiff, the Court considers binding federal precedent when deciding whether “good cause” exists under Rule 4(m). In the Ninth Circuit, “[a]t a minimum, good cause means excusable neglect.” In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001) (brackets in original) (internal quotation marks and citations omitted). Negligence by counsel and ignorance of the Rules is not good cause. See Townsel v. Contra Costa Cnty., Cal., 820 F.2d 319, 320-21 (9th Cir. 1987). When determining whether a plaintiff has shown good cause, the Court has broad discretion, and there is no specific test to apply. In re Sheehan, 253 F.3d at 513. However, the Court can consider whether a plaintiff has shown: “(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.” Id. at 512 (quoting Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991)).
D. Analysis
In support of his Motion, Plaintiff asserts that he has “been diligently trying to serve Officer Gomez by hiring a process server who performed a skip trace, filing two motion and awaiting the Court rulings. Gomez's common name made it impossible for Plaintiff to locate him.” (Doc. 66 at 2.) Plaintiff goes on to state he “immediately accomplished service” by publication after receiving the Court's second ruling. (Id.)
Therefore, Plaintiff indicates that he continued his efforts to serve by publication after receiving the Court's second Order regarding the publication issue. Plaintiff's position is somewhat baffling to the Court, given that the Court's second Order denied publication for a second time and went so far as to suggest what steps Plaintiff could take to cure the defect. (Doc. 62 at 2.) The Court has been provided with no indication whatsoever that Plaintiff made any effort to cure (much less acknowledge) the defect identified by the Court in its most recent Order. Instead, Plaintiff has filed the instant Motion, which essentially says Plaintiff continued on his previous course despite the Court denying publication on two occasions and seeks more time to complete that course.
The Court acknowledges, as it did in its last Order, that prior court approval for service by publication is not required under the applicable Rules. (Doc. 62 at 2.) However, in the instant Motion, Plaintiff is seeking enlargement of time for a method of service that Plaintiff has failed to provide support for, as explained by this Court on multiple occasions. Indeed, there is nothing in the instant Motion that leads the Court to conclude service by publication is now proper under the Rules. Therefore, the Court is not inclined to grant an extension of time for a method of service it has repeatedly found is not proper. The Court's reference to due process in its last Order was not mere lip service. Defendant Gomez has a due process right, and service by publication is a last resort. There is no basis to find service by publication is appropriate, and therefore an enlargement of time to serve by publication is unwarranted.
Moreover, the Court does not find Plaintiff has met the threshold set by Ninth Circuit case law for “good cause” under Rule 4(m). See In re Sheehan, 253 F.3d at 51213. Plaintiff's conduct following the Court's entry of its orders does not even amount to excusable neglect, and Plaintiff has not shown any of the factors identified by the Ninth Circuit, e.g., the Court has no evidence Officer Gomez received actual notice of this action. See id. Accordingly, the Court is inclined to deny Plaintiff's Motion. However, the Court recognizes that denying the Motion could equate to a case dispositive action as to Defendant Gomez. Only a District Judge may enter such an order without full consent of the parties. See 28 U.S.C. § 636(b)(1)(A). Therefore, the Court will recommend to the District Judge that the instant Motion be denied for the reasons described above. Fed.R.Civ.P. 72(b).
CONCLUSION
For the foregoing reasons, the Court finds Plaintiff has failed to demonstrate good cause for relief under the controlling case law. Accordingly, the Court will recommend that the Motion to Extend Time for Service of the Third Amended Complaint on Officer Gomez (Doc. 63) be denied, which may result in Defendant Officer Gomez being dismissed from this action for failure to serve.
IT IS RECOMMENDED that Plaintiff's Motion to Extend Time for Service of the Third Amended Complaint on Officer Gomez (Doc. 63) be DENIED. Such an order may result in Defendant Gomez being dismissed from this action without prejudice under Rule 4(m) of the Federal Rules of Civil Procedure.
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. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.