Opinion
2:20-cv-02150-ART-BNW
12-28-2022
ROSEMARY VANDECAR, an Individual; Plaintiff, v. HAROLD WICKHAM, an Individual; GABRIELA GARCIA-NAJERA, an Individual; RONALD OLIVER, an Individual JENNIFER NASH, an Individual; NICOLE HOLSTON, an Individual; DWIGHT NEVEN, an Individual; DARIO SANCHEZ, an Individual; DEAN MEDEIROS, an Individual; VELASCO, an Individual; KARISSA CURRIER, an Individual; C. McGOWAN, an Individual; MARQUISE L. FRANKLIN, an Individual; JAMES BAUMGRAS, an Individual; RIVERA, an Individual; E. ROJAS, an Individual; ANDREW TRUJILLO, an Individual; NEVADA DEPARTMENT OF CORRECTIONS, a political subdivision of the State of Nevada; Defendants.
AARON D. FORD, ESQ. Attorney General TAYLOR M. L. RIVICH, ESQ. Nevada Bar No. 15991 Deputy Attorney General OFFICE OF THE ATTORNEY GENERAL Attorney for Defendants Joseline Aviles An Employee of THE VIEIRA FIRM, PLLC ANDRÉA L. VIEIRA, ESQ. Nevada Bar No. 15667 THE VIEIRA FIRM Court Appointed Pro Bono Attorney for Plaintiff
AARON D. FORD, ESQ. Attorney General
TAYLOR M. L. RIVICH, ESQ. Nevada Bar No. 15991 Deputy Attorney General OFFICE OF THE ATTORNEY GENERAL Attorney for Defendants
Joseline Aviles An Employee of THE VIEIRA FIRM, PLLC
ANDRÉA L. VIEIRA, ESQ. Nevada Bar No. 15667 THE VIEIRA FIRM Court Appointed Pro Bono Attorney for Plaintiff
MOTION TO EXTEND TIME FOR SERVICE
(First Request)
BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE
Plaintiff, ROSEMARY VANDECAR (“Plaintiff”), through her counsel of record, Andrea L. Vieira, Esq. of THE VIEIRA FIRM, PLLC hereby respectfully moves this Court for an extension of time to serve Plaintiff's Third Amended Complaint (ECF No. 42). This is the first motion to extend time for service.
This Motion is made and based on FRCP 4(m), the pleadings and papers on file herein, the following Memorandum of Points and Authorities, the Declaration of Andrea L. Vieira, Esq. and any exhibits thereto, and any argument this Court may allow at the time of hearing.
MEMORANDUM OF POINTS AND AUTHORITIES
I. RELEVANT PROCEDURAL HISTORY
This is an inmate civil rights matter brought pursuant to 42 U.S.C. § 1983. Plaintiff, Rosemary Vandecar, filed a complaint in proper person on July 7, 2021.
ECF No. 7
On March 10, 2022, an Acceptance of Service on behalf of Defendants Dario Sanchez, A Trujillo, and Harold Wickham was filed.
ECF No. 24
On June 27, 2022, this Court entered an order that allowed Plaintiff to file a Second Amended Complaint by September 30, 2022. On July 8, 2022, undersigned counsel was appointed.
ECF No. 36
ECF No. 37
On September 30, 2022, the Second Amended Complaint was filed. Thereafter, the parties entered into a Stipulation to File Third Amended Complaint and Set Deadlines to File Notice of Acceptance of Service and Answer. On October 21, 2022, this Court entered an Order approving the parties' stipulation.
ECF No. 39
ECF No. 40
ECF No. 41
Among other things, this Court's Order required that Defendants file under seal, with service to Plaintiff's counsel, the last known address for any of the named defendants for whom the OAG could accept service.
ECF No. 41, 2:3-8.
The Third Amended Complaint was filed on October 31, 2022. On November 21, 2022, Defendants filed their Acceptance of Service (accepting service for every defendant except C McGowan, Maritza Velasco-Avila, Luis Rivera, and Edison Rojas) as well as their Notice of Under Seal Submission. However, Defendants did not serve the Notice of Under Seal Submission on Plaintiff's counsel.
ECF No. 42
ECF No. 43 and 44
ECF No. 44
See Declaration of Andrea L. Vieira, Esq. attached hereto.
On December 5, 2022, Plaintiff's counsel sent a letter to defense counsel requesting a copy of the Notice of Under Seal Submission. On December 7, 2022, Defendants filed an Affidavit of Good Cause stating that Defendants had good cause for not serving a copy of the under seal submission of last-known addresses for Maritza Velasco-Avila, Luis Rivera, and Edison Rojas' because their addresses were deemed to be “not public information” and “confidential.” Defense counsel, Taylor Rivich, Esq, also sent a letter stating that the addresses for said Defendants “were submitted to the Court under seal as a matter of course, are deemed confidential by the Nevada Police Officer Bill of Rights (NRS 289.025) [.. .and] For this reason, no copy of the under-seal submission of last-known addresses is forthcoming.”
Id. at Exhibit 1.
ECR No. 48
See e.g. ECF No. 48.
See Exhibit 2 to Declaration of Andrea L. Vieira, Esq.
On the same date, Plaintiff's counsel contacted Mr. Rivich by phone and email regarding the addresses and inquiring why defendants were not complying with this Court's orders. After this exchange, on December 7, 2022 at 3:29 pm, the Office of the Attorney General (“OAG”) served a copy of the Under Seal Submission filed on November 21, 2022.
See Exhibit 3 to Declaration of Andrea L. Vieira, Esq.
See Exhibit 4 to Declaration of Andrea L. Vieira, Esq.
The summons for each the remaining defendants for which defense counsel did not accept service were issued on December 21, 2022. Plaintiff now requests an additional 90 days to serve defendants Maritza Velasco-Avila, Luis Rivera, and Edison Rojas to allow Plaintiff's counsel time to send said defendants a service waiver pursuant to FRCP 4(d) and, if necessary, serve said defendants through any other means allowed under Rule 4 in the event said defendants refuse to waive service.
ECF No. 58
II. LAW AND ARGUMENT
A complaint must be served within 90 days, but if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
FRCP 4(m) requires a district court to grant an extension of time when the plaintiff shows good cause for the delay and permits the district court to grant an extension in the absence of good cause. Good cause is not a rigorous standard which federal courts construe “broadly across procedural and statutory contexts.” Further, requests for an extension beyond the expiration of a deadline should be granted unless there is bad faith on the part of the party seeking relief or there is prejudice to the adverse party.
Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007) (emphasis in original)
Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010)
Id.
When exercising its discretion under FRCP 4(m), a district court may consider factors like 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)
In addition, when a document is filed under seal, the attorney who files the document must include with the document either (i) a certificate of service certifying that the sealed document was served on the opposing attorney, or (ii) an affidavit showing good cause why the document has not been served on the opposing attorney.
LR IA 10-5(c)
Here, good cause exists to extend the deadline for service for 90 days because, as stated above, Plaintiff's counsel was not provided with the last known address for the former employee officer defendants until December 7, 2022, and was not able to obtain an issued Summons until December 21, 2022.
Plaintiff's counsel diligently sought to have the Summons issued via the Court's CM/ECF system. However, the proposed Summons were submitted under seal per this Court's order that the addresses for said defendants be for “attorney eyes only.” As a result, counsel was unable to obtain a copy of the issued Summons with the clerk's signature due to CM/ECF e-filing procedures. After contacting the Clerk's office, undersigned counsel's office resubmitted each Summons with the remaining defendants' names only and no address. The issued Summons for each defendant was received on December 21, 2022.
ECF Nos. 49, 51, 52, and 53
ECF No. 41, 2: 5
ECF Nos. 55, 56, and 57
Defendants will not be prejudiced by a 90-day extension of time to serve defendants Maritza Velasco-Avila, Luis Rivera, and Edison Rojas only as it is believed that said defendants have actual notice of this lawsuit. As part of the parties' stipulation, Defense counsel requested time to contact each defendant to obtain for permission to accept service on their behalf. The three remaining defendants for which defense counsel has not accepted service are defendants for whom defense counsel did not receive requests for representation. Therefore, defendants Maritza Velasco-Avila, Luis Rivera, and Edison Rojas have presumably been made aware of this lawsuit via the Office of the Attorney General yet declined representation. An extension of time will allow time for Plaintiff to request a service waiver and, if necessary, serve said defendants in any other manner allowed under FRCP 4.
See ECF No. 41, 1:26 - 2:2.
Last, Plaintiff's counsel has already conferred with defense counsel, Randall Gilmer, from the OAG who agreed not to oppose this motion and agreed to jointly request that this Court enter an order for the United States Marshall to serve the remaining defendants, if necessary, in the event that said defendants do not return the service waiver to protect their address.
See Declaration of Andrea L. Vieira
III. CONLCLUSION
Based on the foregoing, Plaintiff respectfully requests a 90-day extension of time to serve Defendants Maritza Velasco-Avila, Luis Rivera, and Edison Rojas.
ORDER
Good cause shown, IT IS ORDERED that ECF No. 59 is GRANTED.
IT IS SO ORDERED