Opinion
CV-19-5089-PHX-SPL (JFM)
04-28-2021
Jonathan Tate, Plaintiff v. Unknown Hernandez, et al., Defendants.
Order, and Report and Recommendation re Dismissal
Under consideration is Plaintiff's Motion to Extend Time for Service filed April 21, 2021 (Doc. 61). Plaintiff seeks to extend the time to complete service on Defendant Hernandez, citing as cause disruption in access the prison library, etc. Plaintiff also asserts he never received a copy of the Court's Order (Doc. 53) addressing Plaintiff's Motion to Make Traditional Service by Publication (Doc. 52).
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 the Motion is dispositive 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).
Background - Hernandez has made various attempts at service over the last 17 months. The original service attempt was returned unexecuted on January 14, 2020 (Doc. 10). After prompting by the Court, Plaintiff sought an extension and was given until February 26, 2020 to compete service. (Order 2/5/20, Doc. 18.) Plaintiff then sought and obtained an additional service packet (Order 2/21/20, Doc. 22), which was returned unexecuted ("no longer at address") (Doc. 26). Plaintiff then sought an Order from the Court to the Arizona Department of Corrections to provide a last known address (Order 3/10/20, Doc. 24). That resulted in a notice (Doc. 25) that ADOC could not identify Plaintiff's CO Hernandez, and that the badge number provided was non-existent. Plaintiff again sought and was granted a new service packet (Order 4/9/20, Doc. 28), but service was again returned unexecuted (Doc. 31).
In response to an order to show cause on failed service (Order 7/1/20, Doc. 34), Plaintiff sought and was granted leave to amend his complaint. (Order 7/16/20, Doc. 40.) The First Amended Complaint was screened (Order 8/21/20, Doc. 43 (dismissing all defendants except Hernandez)) and Plaintiff was directed to show cause why renewed attempts at service would succeed. (Order 8/24/20, Doc. 44.) Plaintiff responded (Doc. 45) asserting he had discovered a name, badge number, position and work location at ASPC-Lewis. Plaintiff was again provided a service packet, and the deadline for service extended until November 3, 2020. (Order 9/4/20, Doc. 47.) Service was again returned unexecuted on November 19, 2020, indicating Hernandez was no longer employed there. (Doc. 50.)
Plaintiff was again ordered to show cause why the case should not be dismissed for failure to serve. (Order 12/8/20, Doc. 50.) Plaintiff responded with his motion to serve by publication (Doc. 52), which was granted to the extent that a new order to the Arizona Department of Corrections was issued, requiring a last known address. (Order 12/18/20, Doc. 53.) A last known home address was provided (Doc. 54), and service again attempted unsuccessfully, showing Defendant had moved from the provided address (Docs. 56, 57).
Plaintiff was again ordered to show cause why the case should not be dismissed for failure to serve. (Order 3/9/21, Doc. 58.) Plaintiff belatedly responded (Doc. 59), seeking additional time, citing interruption in his access to legal resources. The Court granted an extension, observing:
However, courts routinely reject efforts to rely on emergent delays which come on the heels of a lack of diligence. "When parties wait until the last minute to comply with a deadline, they are playing with fire." Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir. 1996) (finding no excusable neglect where, after two extensions, deadline missed because of last minute computer problems). Accordingly, Plaintiff is cautioned that further extension requests will be evaluated in light of the length of time already allowed.
* * *
The original service order (directing service on Hernandez) was issued November 22, 2019 (Doc. 8). Plaintiff has now had over 16 months to complete service on Defendant Hernandez. The Court observes that Plaintiff's motion offers conclusory assertions that he has "taken significant steps in order to locate the defendant," and that he "still has options to serve defendant." But he offers no particulars about the steps taken, his diligence in pursuing them, or the reasons to expect service will be accomplished. Such conclusory assertions will not be considered sufficient to meet either the good cause or excusable neglect standards for granting further extensions, especially in light of the time already allowed.(Order 3/31/21, Doc. 60 at 2-3.)
No Good Cause to Extend - Under Rule 4(m), the Court must grant motions to extend time to serve for good cause, and has discretion to grant them for excusable neglect. Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir.2009).
The undersigned does not find good cause to extend the time to serve. In most situations, the undersigned would be inclined to presume that a disruption in prison library access was good cause. However, despite having been previously warned of the need to do so, Plaintiff proffers no particulars to support his request, and instead simply reports unspecified interruptions in library access. Plaintiff provides no information on the steps he has been taking (or attempting to take) to effect service, his diligence in pursuing them, or the reasons to expect service can be accomplished.
No Excusable Neglect - Nor does the Court find excusable neglect. A determination of excusable neglect "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission...[including] the danger of prejudice...length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Pioneer Inv. Services Co. v. Brunswick Associates Ltd. P'ship, 507 U.S. 380, 395 (1993).
Here, Plaintiff fails to show that his reason for delay in serving Hernandez has resulted from anything other than his own lack of diligence or ability in locating Hernandez. Moreover, Plaintiff's conclusory argument (in the face of the warning given) leads the undersigned to believe that Plaintiff is acting in bad faith, seeking an extension he has no real hope of resulting in the completion of service. The fact that Plaintiff fails to even identify a length of extension to be granted supports the conclusion that he is simply seeking delay.
Here, Plaintiff has had an extraordinary length of time and repeated assistance from the Court in attempting service. Over the last eight weeks, Plaintiff has taken no identifiable action to complete service, and now effectively proposes an open-ended extension. All of this delay has rendered the judicial proceedings stalled and creates a risk of prejudice to defendant in having to defend a suit that is already some 18 months old, concerning events that occurred more than two years ago.
The undersigned is cognizant that prisoners face challenges in completing service, and has been generous on that basis over the life of this case. However, Plaintiff's lack of identifiable action over the last 90 days leads the undersigned to conclude that the current delay is within the reasonable control of Plaintiff.
In Boudette, the court stated that a plaintiff may be required to show the following factors to extend the time for service: "(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." Boudette, 923 F.2d at 756 (citing Hart v. United States, 817 F.2d 78, 80-81 (9th Cir.1987)).
Here, Plaintiff proffers no reason to believe that Defendant Hernandez has actual notice of the suit and would not suffer prejudice from the delay. Plaintiff proffers no reason to believe Plaintiff would suffer prejudice, beyond the ordinary loss of his claim for damages as a result of the statute of limitations, if additional time for service is denied and the case does not proceed.
Weighing all the relevant factors, the undersigned does not find excusable neglect to justify an extension of the time to serve.
IT IS ORDERED the Clerk must again forward to Plaintiff a copy of the Order filed December 18, 2020 (Doc. 53). / /
IT IS RECOMMENDED: (A) Plaintiff's Motion to Extend Time for Service (Doc. 61) be DENIED. (B) Defendant Hernandez and this case be DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 4(m).
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."
/s/_________
James F. Metcalf
United States Magistrate Judge Dated: April 28, 2021
19-5089-061o Order 21 04 28 on Motion to Extend Time for Service.docx