Opinion
Case No. 2:16-cv-02632-RFB-BNW
04-09-2020
CURTIS L. DOWNING, Plaintiff, v. JO GENTRY, et al, Defendants.
ORDER
Before the Court are Plaintiff's Motion to Amend Complaint (ECF No. 80) and Defendants' Motion to Extend Time to File an Answer (ECF No. 82). At the hearing on March 5, 2020, the Court dismissed without prejudice all defendants who had not yet been served but permitted Plaintiff to file a Motion to Amend based upon his belief from information received that he had obtained the correct addresses for purposes of effectuating service, but service had been unsuccessful because no one had been home to receive service. ECF No. 81 at 12.
Plaintiff filed the instant motion indicating that he did not have correct addresses for Angel Contreras, Tyler Hochmann, Subhabrata Das, and Eyvi Rodarte. ECF No. 80 at 2. He indicates he did have correct addresses for Joshua Ortega and Minor Adams, but that service was not effectuated after several attempts because no one was home to receive service. Id. The Court notes that Ortega, Das, Rodarte, Contreras, Hochmann, and Adams were dismissed by the Court on July 11, 2019 pursuant to Federal Rule of Civil Procedure 4(m). ECF No. 70. Plaintiff also states that service on Jose M. Navarette was successful as of December 2018. Id. at 1.
Federal Rule of Civil Procedure 4(m) requires the Court on motion or on its own after notice to the plaintiff to dismiss an action without prejudice against a defendant who was not served within ninety days after the complaint was filed. However, "if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Fed. R. Civ. P. 4(m).
The Court construes the motion as a Motion for Issuance of Summons and Service, as the Amended Complaint already names these defendants and Navarette was successfully served, though the Court notes he has not responded to Plaintiff's complaint in any way, despite having been served over one year ago. The Court will grant the motion in part and deny it in part. The Court will also allow for the reinstatement of defendants Ortega and Adams, as Plaintiff has shown good cause for the failure to effectuate service. Given Plaintiff's incarceration, he is not capable himself of effectuating service and must rely on the U.S. Marshal's Office to do so. The Court will deny the motion as to the remaining defendants, Angel Contreras, Tyler Hochmann, Subhabrata Das, and Eyvi Rodarte. The Court notes that Magistrate Judge Leen already granted Plaintiff's motion to have service effectuated by the U.S. Marshals on these and other defendants in October 2018, but the addresses provided by Plaintiff were incorrect. Given the amount of time that has since passed and the likely prejudice that would result, the Court declines to reinstate these defendants. Therefore Contreras, Hochmann, Das, and Rodarte remain dismissed from this action.
The Court will also grant Defendants' Motion to Extend Time to File an Answer to the First Amended Complaint (ECF No. 82) as Defendants have cited good cause for the delay. // // // // // // // // // // //
CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff's Motion to Amend the Complaint (ECF No. 80) is GRANTED in PART and DENIED in PART as discussed in this order. The Clerk of Court is instructed to reinstate (1) Minor Adams and (2) Jose Ortega, issue summons under seal, and deliver the same to the United States Marshal for service along with a copy of this Order, the First Amended Complaint (ECF No. 64), and Sealed Submission of Last Known Address (ECF No. 18).
IT IS FURTHER ORDERED that after attempting service, the United States Marshal shall redact the process receipt and return forms so that the defendants' last known address is not made publicly available. The United States Marshall shall file notice with the Court, and serve the notice on Plaintiff, indicating whether each Defendant was served. Plaintiff must comply with this Order by completing service by June 8, 2020. The Court will not provide further extensions of service.
IT IS FURTHER ORDERED that Defendants' Motion to Extend Time to File an Answer to the First Amended Complaint (ECF No. 82) is GRANTED. Defendants shall have up to and including May 5, 2020 to file an Answer.
DATED: April 9, 2020.
/s/ _________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE