Opinion
CV-19-0406-PHX-DLR (JFM)
11-18-2019
Shalek E. Modee, Plaintiff v. Corizon Health, et al., Defendants.
Report & Recommendation re Dismiss Natasha, Gowey, Vinson, and Johnson
Pending before the Court are two motions which seek to extend time to serve, regarding Defendants Natasha, Gowey and Vinson (Doc. 128) and Defendant Johnson (Doc. 129). 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 motions 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 Defendants Corizon, Ryan, Buchholz, Rainey, Gertz, Smith, Gay, Flake, Weigel, Demery, Chamberlain, Romero, and Scott. Service is still outstanding on Defendants Tana, Hawley, and Nieblas. Service on Defendant Loyd was returned unexecuted, and an Order to Show Cause regarding dismissal of Loyd has issued. That leaves Defendants Natasha, Gowey, Vinson, and Johnson unserved and without pending service.
First attempts at service were returned unexecuted on Defendants Natasha (Doc. 25) and Johnson (Doc. 26) on June 14, 2019, on Defendant Gowey (Doc. 31) on June 17, 2019, and on Defendant Vinson (Doc. 50) on July 22, 2019. On Plaintiff's motions (Docs. 27 and 48), a last known address was ordered from Corizon Inc. for Natasha, Gowey and Johnson (Order 6/24/19, Doc. 38) and Vinson (Order 7/23/19, Doc. 60). Last known home addresses were provided under seal on July 12, 2019 (Docs. 44, 45, 46) and August 6, 2019 (Doc. 76).
Second attempts at service were again attempted on Natasha, Gowey, and Johnson. However, the U.S Marshals Service confirmed to the Court that the address provided for Vinson was the same address where service had previously been attempted and where the earlier return reported the "*Address Not Valid* current resident stated she has lived there for over 1 Yr." (See Order 8/8/19, Doc. 81 (quoting Return (Doc. 50)).) Accordingly, service on Vinson was not again ordered. Service was again returned unexecuted on July 26, 2019 on Defendants Natasha (Doc. 66) and Gowey (Doc. 67), on August 26, 2019 on Defendant Johnson (Doc. 95).
Plaintiff then again sought an order directing Corizon to provide last known addresses for, inter alia, Defendants Vinson and Gowey. (Docs. 62 and 83.) This request was denied because "Plaintiff proffers no reason to believe that Corizon will now have a better address." (Order 8/13/19, Doc. 88.)
Orders to show cause then issued. On September 10, 2019, the Court issued an Order to Show Cause (Doc. 114) directing Plaintiff to show cause why Johnson should not be dismissed for failure to timely serve. Plaintiff responded (Doc. 122), urging the merits of his claims against Johnson. The Court found no showing of good cause under Rule 4(m) to extend the time to serve Johnson. (Order 9/16/19, Doc. 126). Plaintiff then filed the instant motion to extend ("Motion for Reconsideration") (Doc. 129).
On September 16, 2019, the Court issued an Order to Show Cause (Doc. 125) directing Plaintiff to show cause why Defendants Natasha, Gowey and Vinson should not be dismissed for failure to timely serve. Plaintiff responded by filing the instant motion ("Memorandum Showing Cause") (Doc. 128), seeking an extension of time to serve Natasha, Gowey and Vinson.
In both of his motions (Docs. 128 and 129), Plaintiff reiterates his past attempts at service on these defendants, and argues his diligence.
On October 3, 2019, Defendants have responded (Doc. 140) arguing that the Court's Order (Doc. 126) already determined Plaintiff had failed to show good cause to extend the time to serve Johnson, and arguing Plaintiff has failed to proffer any reason to believe further attempts at service on the other defendants will be successful, given the lack of success after last known addresses were provided.
Defendants erroneously reference this order as being filed "September 18, 2019 (Doc. 129)." --------
Plaintiff has not replied.
The Court's Order filed September 16, 2019 (Doc. 126) did not make a prejudicial determination whether Johnson should be dismissed, only that Plaintiff's response had not shown good cause in his Response (Doc. 122) to the order to show cause, having asserted only the merits of his claims as a basis for avoiding dismissal. Thus, that Order is not determinative on whether Johnson must now be dismissed. Consequently, the undersigned construes Plaintiff's motion as not seeking reconsideration of the prior Order, but as a motion to extend time to serve Johnson. 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. 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.
To determine whether a plaintiff demonstrates excusable neglect, courts use the common excusable neglect 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.
[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. For example, under the current scheduling order, disclosure deadlines have passed and the discovery requests deadline expires November 20, 2019, the discovery motions deadline expires on December 20, 2019, and the dispositive motions deadline is January 21, 2020. (Order 7/23/19, Doc. 61.) Although various defendants have only appeared in the last 60 days, or have service still outstanding, Plaintiff's remaining claim relates to a course of treatment for an injury to his eye in May 2016. Thus, it is not anticipated that these deadlines will be extended because of delayed service on these other defendants. Thus, even if Plaintiff were prepared to immediately reattempt service, pretrial proceedings would largely be concluded. Moreover, the complained of events already date back to almost three and a half years ago, creating risks associated with delayed litigation such as lost evidence and faded memories.
Finally, prejudice would result to the other opposing parties, whose cases would be ready to proceed to dispositive motion and/or trial by the time new defendants would be served and appeared.
This factor weighs against a finding of excusable neglect.
Length of Delay and Impact - This case is already almost nine months old, service was ordered over five months ago, and the time for service expired over three months ago. The last service attempt on Defendant Vinson was returned on July 22, 2019, over three months ago (Doc. 50). The last service attempts on Natasha and Gowey were returned on July 26, 2019, almost three months ago (Docs. 66, 67). The last service attempt on Johnson was returned unexecuted on August 26, 2019, almost two months ago (Doc. 95). According to Plaintiff's own motions, his most recent actions to pursue service were his motions requesting addresses for service (Docs. 27 and 48), the most recent of which was filed July 22, 2019. To now extend the time for service, and to introduce a new defendant would effectively mean resetting the schedule in this case.
This factor weighs against a finding of excusable neglect.
Reason for Delay - Plaintiff's fitful attempts at service on these defendants do not demonstrate diligence, nor provide sufficient reason to explain the extent of the delay. Rather, much of the delay is attributable to simple neglect. Plaintiff points to the limitations of his incarceration. Such limitations are substantial. But they do not preclude Plaintiff from all action. Plaintiff proffers no evidence of recent or planned efforts to complete service, and offers nothing to connect his failure to do so to his incarceration.
This factor weighs strongly against a finding of excusable neglect.
Good faith - There appears no reason to conclude that Plaintiff has acted in bad faith, as opposed to simply being dilatory.
This factor weighs in favor of a finding of excusable neglect. 3. Summary
In sum, the undersigned finds that the factors against a finding of excusable neglect weigh more heavily. Accordingly, Plaintiff's motions should be denied, and Defendants Natasha, Gowey, Vinson, and Johnson should be dismissed without prejudice for failure to make timely service. / /
IT IS THEREFORE RECOMMENDED: (A) Plaintiff's Motion to Extend ("Memorandum Showing Cause") (Doc. 128) be DENIED. (B) Plaintiff's Motion to Extend ("Motion for Reconsideration") (Doc. 129) be DENIED. (C) Pursuant to Rule 4(m), Defendants Natasha, Gowey, Vinson, and Johnson 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." Dated: November 18, 2019
19-0406o Order 19 10 21 re RR re Dismiss Natasha etc.docx
/s/_________
James F. Metcalf
United States Magistrate Judge