Opinion
CV-23-01239-PHX-DMF
04-25-2024
Jim Navarro, Plaintiff, v. United States of America, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine, United States Magistrate Judge
TO THE HONORABLE STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:
This matter was filed in July 2023 and is before the Court on its own review. Plaintiff has not filed proof of effectuating proper service of the Complaint upon any of the defendants. Further, despite Orders to Show Cause, Plaintiff has not shown adequate cause in writing as to why this matter should not be dismissed for failure to serve.
Before appearances and consent of defendants, there is not full consent for a Magistrate Judge to enter dispositive orders. See Williams v. King, 875 F.3d 500 (9th Cir. 2017). Thus, pursuant to General Order 21-25, this Report and Recommendation is made to Senior United States District Judge Stephen M. McNamee.
For the reasons set forth below, it is recommended that this matter be dismissed without prejudice for failure to timely serve the defendants.
I. PROCEDURAL HISTORY AND POSTURE
Plaintiff, who is a non-incarcerated and self-represented litigant, filed a Complaint in this matter on July 3, 2023 (Doc. 1). After a minute order that Plaintiff must pay the filing fee or file an application to proceed in forma pauperis (Doc. 4), Plaintiff paid the filing fee in full on July 31, 2023 (Doc. 6).
In March 2021, Plaintiff had filed a similar complaint, with significant overlap of named defendants and almost complete overlap of the nature of the case, the three counts alleged, the factual basis for the three counts alleged, and the relief requested (Compare Complaint (Doc. 1) with the complaint (Doc. 1) in Navarro v. United States of America, et. al, CV 21-00382-PHX-SMB). The previous case, Navarro v. United States of America, et. al, CV 21-00382-PHX-SMb, was dismissed without prejudice for Plaintiff's failure to pay the filing fee or file an application to proceed in forma pauperis.
Upon Plaintiff's filing of the Complaint, Plaintiff was mailed the standard United States Magistrate Judge/United States District Judge election form (Doc. 2). Shortly after an Order to Show Cause regarding Plaintiff's failure to timely return the election form (Doc. 5), Plaintiff consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) (Doc. 8).
On August 7, 2023, the Court denied Plaintiff's motion for appointment of counsel and directed Plaintiff to this Court's website for resources for self-represented litigants (Doc. 11 at 1; see also Doc. 10). Plaintiff filed an interlocutory appeal to the Ninth Circuit of the denial of appointment of counsel (Docs. 12, 13) and paid the filing fee (Doc. 16). On August 29, 2023, this Court denied a stay in this matter, and again referred Plaintiff to this Court's website regarding resources for self-represented litigants (Doc. 15; see also Doc. 14). This Court's August 29, 2023, Order further stated that “[i]f Plaintiff wishes to proceed with the lawsuit, he must timely effectuate service upon the named defendants” (Doc. 15). Later, the Ninth Circuit dismissed the interlocutory appeal for lack of jurisdiction because the order challenged was not final or appealable under applicable law (Doc. 21).
On October 4, 2023, while the interlocutory appeal regarding denial of appointment of counsel was pending and after expiration of the time for service of the defendants, this Court issued an Order to Show Cause regarding Plaintiff's failure to timely serve any of the defendants in this matter (Doc. 18) (“October Order”). The October Order stated that “Plaintiff is responsible for service of the Complaint” pursuant to Rule 4, Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) and set forth Fed.R.Civ.P. 4(m):
(m) Time Limit for Service. 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. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).(Doc. 18 at 1-2). The October Order also cited “Ferdik v. Bonzelet, 963 F.2d 1258, 126061 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court)” and reminded Plaintiff that “[t]he Federal Rules of Civil Procedure and other resources for self-represented litigants are available without charge on this Court's website: https://www.azd.uscourts.gov/” (Doc. 18 at 2). The October Order warned of dismissal of any unserved defendants for failure to timely serve such defendants (Id.). In addition, the Court extended time for service, ordering “that, no later than November 3, 2023, Plaintiff shall either (1) file with the Court proof of service of process on Defendants; or (2) otherwise show cause in writing filed with the Court (titled ‘Response to Order to Show Cause') as to why unserved Defendants should not be dismissed without prejudice for failure to timely complete service” (Id.). Plaintiff filed an interlocutory appeal of the October Order (Doc. 19).
In addition to the interlocutory appeal, Plaintiff filed a timely Response to October Order (Doc. 20), which attached U.S. Postal Certified Mail Receipts for mailing to Denis McDonough as Secretary of the VA-Board of Veterans Appeals, Pueblo VA Medical Clinic, Andrew Saul SSA Commissioner, Office of Disability, and James Shanks Social Security Administration (Id. at 2). There are no cards attached to the filing reflecting signature of any recipient of the certified mailings (Id.). The Response to Order to Show Cause stated that “[t]his is the best I can do to snd [sic] Certify Mail to Defendants becuse [sic] of my Poverty” and that “[i]n 23 Years of Filing against Defendants I ve [sic] lost count how many times the Defendants receive a Complaint from me” (Id. at 1).
Plaintiff's October 2023 Response to Order to Show Cause (Doc. 20) was Plaintiff's most recent filing in this Court in this matter.
On January 23, 2024, which was several days after the Ninth Circuit mandate issued denying Plaintiff's interlocutory appeal relating to the denial of appointment of counsel, this Court issued a second Order to Show Cause regarding service stating that Plaintiff's Response to the Order to Show Cause (Doc. 20) “did not fully comply with Fed.R.Civ.P. 4” (Doc. 23). The January 2024 Order to Show Cause again reminded Plaintiff of his obligation to properly and timely serve the defendants as well as the possibility of dismissal without prejudice for failure to serve (Id.). The Order to Show Cause again stated that “[t]he Federal Rules of Civil Procedure and other resources for self-represented litigants are available without charge on this Court's website: https://www.azd.uscourts.gov” (Doc. 23 at 2). Further, the Order to Show Cause contained the full text of Fed.R.Civ.P. 4(i), which clearly sets forth the requirements for service of the defendants in this matter, including the steps for proper service by certified mail:
(i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.
(1) United States. To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought--or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk--or
(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;
(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.
(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.
(3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).
(4) Extending Time. The court must allow a party a reasonable time to cure its failure to:
(A) serve a person required to be served under Rule 4(i)(2), if the party has served either the United States attorney or the Attorney General of the United States; or
(B) serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee.(Doc. 23 at 2-3). The Court again extended time for service, ordering “that, no later than February 21, 2024, Plaintiff shall either (1) file with the Court proof of service of process on Defendants; or (2) otherwise show cause in writing filed with the Court (titled “Response to Order to Show Cause”) as to why unserved Defendants should not be dismissed without prejudice for failure to timely complete service” (Id. at 3).
Plaintiff did not respond to the January 23, 2024, Order. Indeed, Plaintiff's most recent filing in this Court in this matter is his October 2023 Response to Order to Show Cause (Doc. 20).
On March 4, 2024, rather than recommend dismissal of this action for failure to serve, the Court again extended time for service, this time to April 3, 2024, requiring Plaintiff to either file proof(s) of service in compliance with or otherwise show cause in writing filed with the Court (titled “Response to Order to Show Cause”) as to why unserved defendants should not be dismissed without prejudice for Plaintiff's failure to timely complete service (Doc. 25). The Court specifically warned again that “[f]ailure to timely and appropriately respond to this Order may result in the dismissal of this action without prejudice” (Id. at 2).
On April 23, 2024, the Ninth Circuit dismissed the interlocutory appeal of the October Order for lack of jurisdiction because the order challenged was not final or appealable under applicable law (Doc. 26). As stated above, at the time of this Report and Recommendation, Plaintiff's most recent filing in this Court in this matter is his October 2023 Response to Order to Show Cause (Doc. 20). There is no filing on the docket reflecting that Plaintiff availed himself of the reasonable extensions of time granted by the Court for service by certified mail pursuant to Fed.R.Civ.P. 4(i). See also Fed.R.Civ.P. 4(1). Noteworthy is that the Court's docket does not reflect any returned mail, leading to the conclusion that Plaintiff continues to receive the mailed Orders in this matter, which has been pending since July 2023. No defendant has entered an appearance in this matter.
II. DISCUSSION
Plaintiff paid the filing fee in this matter, which relieves the Court of any obligation to screen the Complaint pursuant to 28 U.S.C. § 1915(e). Because Plaintiff is not in custody and does not have in forma pauperis status, Plaintiff is responsible for service by waiver or of the summons and complaint. See Fed.R.Civ.P. 4(c)(1) (“The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.”); Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991) (absent a specific request and court order that the U.S. Marshal effect service on their behalf pursuant to now Fed.R.Civ.P. 4(c)(3), persons who prepay civil filing fees “remain[ ] responsible for timely service”); Fed.R.Civ.P. 4(c)(3) (regarding service by a Marshal or someone specially appointed: “At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court” and “[t]he court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.”).
The Court has already granted Plaintiff several extensions of time for service, which have resulted in Plaintiff having had six months additional time for service after the Court's October 2023 initial Order to Show Cause. The issue presently before the Court is whether to grant Plaintiff an additional extension of time to serve the defendants in this matter pursuant to Fed.R.Civ.P. 4(m) or whether to deny the additional extension and dismiss this action because none of the defendants have been properly served pursuant to Fed. R. Civ. P. 4(i). See also Fed.R.Civ.P. 4(1).
A federal court does not have “personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed.R.Civ.P. 4.” Travelers Cas. & Sur. Co. of America v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (internal quotation marks and citations omitted). Rule 4(m) provides that:
[i]f 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. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).Fed. R. Civ. P. 4(m). A “plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m)[.]” Fed.R.Civ.P. 4(c)(1). Further, the Court's responsibilities do not include assisting a plaintiff in locating a defendant. See Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges have no obligation to act as counsel or paralegal to pro se litigants.”).
Here, the time for service of the defendants expired on April 3, 2024, after Plaintiff was granted multiple extensions of time to serve the defendants.
There are “two avenues for relief' from the time limit for service in Rule 4(m). Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). The first, which is “mandatory,” requires a district court to “extend time for service upon a showing of good cause.” Id. (citing In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001)). Under the second, which is discretionary, “if good cause is not established, the district court may extend time for service upon a showing of excusable neglect.” Id. Although the Ninth Circuit has not “articulate[d] a specific test that a court must apply in exercising its discretion under Rule 4(m),” Sheehan, 253 F.3d at 513, a Court may consider factors such as “a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.” Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007).
A. The Record Does Not Establish Good Cause for a Mandatory Extension of Time
The burden of establishing good cause under Fed.R.Civ.P. 4(m) is on the plaintiff. Boudette, 923 F.2d at 755 (applying former Rule 4(j), which set a 120-day time limit for service). “At a minimum, good cause means excusable neglect[,]” but three factors may be considered to determine if there is good cause for an extension of time to effectuate service: “(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, 923 F.2d at 756; see also Hart v. United States, 817 F.2d 78, 80 (9th Cir. 1987). Here, Plaintiff has not shown good cause warranting another extension of time for service of any of the defendants.
First, Plaintiff has not shown excusable neglect warranting another extension of time for service of any of the defendants. Despite that the Court has extended time for service several times to April 3, 2024, pointed Plaintiff to pro se litigant resources, and even laid out the straightforward, inexpensive steps for proper certified mail service of defendants, Plaintiff has not made any filing in this matter in this Court since October 2023 (Doc. 20).
As for factor (a) regarding whether the defendants received actual notice of Plaintiff's lawsuit, Plaintiff did initiate certified mailings to some of the defendants or their agencies. Yet Plaintiff does not claim, let alone show, that any of the named defendants actually received the few certified mailings made by Plaintiff. The defendants have not been properly served with process, and none of the defendants have made an appearance before the Court even after Plaintiff's certified mailings to some of the defendants or their agencies. Given the above, factor (a) does not support a finding of good cause.
As for factor (b), whether defendants would suffer no prejudice from the additional extension, an important consideration is that this 2023 lawsuit was filed years after its alleged events. In March 2021, Plaintiff had filed a similar complaint, with significant overlap of named defendants and almost complete overlap of the nature of the case, the three counts alleged, the factual basis for the three counts alleged, and the relief requested (Compare Complaint (Doc. 1) with the complaint (Doc. 1) in Navarro v. United States of America, et. al, CV 21-00382-PHX-SMB). Further, Count III of the Complaint in this matter, like in the previous matter, references alleged events in 2016 and Plaintiff's alleged discovery of the significance of those events in 2018 (Doc. 1 at 7). Continuing to extend the time for service of the defendants subjects the defendants to the prospect of defending alleged factual events that grow older and older. This is prejudicial to the defendants.
As noted above in footnote 1, supra, the previous case, Navarro v. United States of America, et. al, CV 21-00382-PHX-SMB, was dismissed without prejudice for Plaintiff's failure to pay the filing fee or file an application to proceed in forma pauperis.
Factor (c) is whether the plaintiff would be severely prejudiced if his complaint were dismissed for failure to timely serve. “A dismissal for untimely service is required to be a dismissal without prejudice[,]” thereby allowing a “plaintiff to refile the complaint and effect timely service.” United States v. 2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 776, 773 n.2 (9th Cir. 2004). However, if a plaintiff would not be able to refile a complaint due to a statute of limitations, dismissal without prejudice would severely prejudice a plaintiff. See, e.g., Trueman v. Johnson, 2011 WL 6721327, at *4 (D. Ariz. Dec. 21, 2011). Here, Plaintiff labels Count I of his Complaint as a claim under the “Civil Rights Act 1964”, Count II as a claim under “1990 American With Disabilities Act” (hereafter “ADA”), and Count III as an “8th Amendment” and “14thAmendment” claim (Doc. 1 at 5-7). Noteworthy is that Plaintiff raised identical claims to Counts I, II, and III in this matter in the March 2021 complaint Plaintiff filed in Navarro v. United States of America, et. al, CV 21-00382-PHX-SMB (Doc. 1 at 5-7), which was later dismissed without prejudice in May 2021. If the passage of time was detrimental to Plaintiff's claim such that he would be severely prejudiced, he should (and reasonably would) be pursuing his rights more diligently than waiting over two years to refile his claims.
Further, as to Count I of the Complaint, it appears that Plaintiff likely is referring to Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, which only allows equitable relief and does not specify a time limit for bringing an action. Because only equitable relief is available under § 2000a, some courts have found that no statute of limitations applies to § 2000a claims. See, e.g., Jackson v. Waffle House, Inc., 413 F.Supp.2d 1338, 1362 (N.D.Ga. 2006). Regarding Count II, the statute of limitations for an ADA claim is the most analogous state law statute of limitations. Sharkey v. O'Neal, 778 F.3d 767, 770-771 (9th Cir. 2015). The statute of limitations on a claim brought under Arizona's Public Accommodation Law is two years. See Ariz. Rev. Stat. § 41-1492.08(C). Given the identical claim in the March 2021, complaint Plaintiff filed in Navarro v. United States of America, et. al, CV 21-00382-PHX-SMB (Doc. 1 at 6), it appears that the statute of limitations likely already expired on Count II before Plaintiff's filing of this matter. Thus, no prejudice resulting from dismissal without prejudice at this stage is apparent. Insofar as Count III, there is no such thing as a stand-alone constitutional civil claim, and only federal statutes provide a civil remedy for violation of constitutional rights, such as 42 U.S.C. § 1983. See Yokeno v. Mafnas, 973 F.2d 803, 807 (9th Cir. 1992). Because “Section 1983 does not include its own statute of limitations ... federal courts apply the statute of limitations governing personal injury claims in the forum state.” Finkle v. Ryan, 174 F.Supp.3d 1174, 1186 (D. Ariz. 2016). In Arizona, where Plaintiff alleges the events in his Amended Complaint took place, the statute of limitations “for personal injury claims is two years.” Id. In Count III, Plaintiff references his 2018 discovery of consequences of alleged 2016 events (Doc. 1 at 7). While Plaintiff may not have properly plead any lawful claim in Count III, if Count III is construed as a Section 1983 claim, the statute of limitations likely already expired by the time of Plaintiff s filing of the Complaint in this matter.
Overall, factor (c) which requires consideration of any severe prejudice to Plaintiff, does not support a mandatory extension of time. Further, the unlikelihood that an additional extension of time would result in service upon the defendants undercuts prejudice to Plaintiff if the matter is dismissed at this time.
Accordingly, good cause for an additional extension of time to serve the defendants does not exist on the record before the Court. Thus, granting Plaintiff an additional extension of time to serve is not mandatory.
B. A Discretionary Extension of Time is Unwarranted
Where good cause does not exist, the Court may grant a discretionary extension of time for Plaintiff to serve the defendants. The Court has “broad” but not limitless “discretion to extend time for service under Rule 4(m).” Efaw, 473 F.3d at 1041. In deciding whether to extend the time for service, “a district court may consider factors ‘like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.'” Id. (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998)). These factors overlap with the factors for a mandatory extension of time.
Importantly, Plaintiff has not provided the Court with any plans he has made to effectuate service on any of the defendants. Indeed, Plaintiff has not made any filing in this matter in this Court since October 2023. Given the time that has already passed and the multiple previous extensions of time with clear directions as to how to properly effectuate service upon the defendants, the Court lacks confidence that an additional extension of time will result in service of any of the defendants.
Under the circumstances before the Court at this time as discussed above and herein, it is recommended that Plaintiff not be granted an additional, discretionary extension of time to serve the defendants.
III. CONCLUSION
Plaintiff has not served any of the defendants despite multiple previous extensions of time to do so, Plaintiff has not responded to the Court's January 2024 and March 2024 Orders to Show Cause, and the record does not establish adequate cause or reason to grant Plaintiff an additional extension of time for service. Therefore, it is recommended that this matter be dismissed without prejudice for failure to timely serve pursuant to Fed.R.Civ.P. 4(m) and that the Clerk of Court be directed to terminate this matter.
Accordingly, IT IS RECOMMENDED that this matter be dismissed without prejudice due to Plaintiff's failure to timely serve the defendants pursuant to Fed.R.Civ.P. 4(m) and that the Clerk of Court be directed to terminate this matter.
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) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen 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, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely 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 file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.