Wilson v. City of Phx.

Full title: Dequandrick Wilson, Plaintiff v. City of Phoenix, et al., Defendants.

Court: United States District Court, District of Arizona

Date published: Mar 10, 2023

CV-22-1192-PHX-JAT (JFM) (D. Ariz. Mar. 10, 2023)

Opinion

CV-22-1192-PHX-JAT (JFM)

03-10-2023

Dequandrick Wilson, Plaintiff v. City of Phoenix, et al., Defendants.

James F. Metcalf United States Magistrate Judge

REPORT & RECOMMENDATION

James F. Metcalf United States Magistrate Judge

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 this matter is dispositive of claims or defenses, 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. DISCUSSION

Failure to Timely Serve - Plaintiff filed through counsel his Complaint (Doc. 1) on July 15, 2022, naming as Defendants City of Phoenix, Alec Knipp, Justin Gettings, and Unknown Parties Does 1 through 50. The Court's service Order (Doc.6) was entered on July 28, 2022, giving Plaintiff the longer of 90 days from the Complaint, or 60 days from the service order to complete service. Under the Court's Order, service in this matter should have been completed by October 13, 2022. However, on November 1, 2022, the Court granted Plaintiff's Motion (Doc. 9) and extended the deadline to November 28, 2022. (Order 11/1/22, Doc. 10.)

Plaintiff appears to have completed service on Defendant City of Phoenix and Gittings, who have moved for extensions of time to respond to the Complaint (Docs. 13, 16, 27). Defendant Knipp and Does 1 through 50, however, have not been served.

In its Order filed December 6, 2022 (Doc. 15), the Court ordered Plaintiff to file a memorandum showing cause why Defendants Knipp and Does 1 through 50 should not be dismissed without prejudice for failure to effect service.

Counsel's Withdrawal - In the meantime, Plaintiff's counsel filed a series of Motions to Withdraw (Docs. 11, 16, 24) based on Plaintiff's termination of counsel, and the last such motion was granted on February 14, 2023 (Doc. 28). Counsel reported that attempted personal service on Plaintiff at his last known address was returned unexecuted advising Plaintiff had relocated and the family remaining there refused to provide a current address. Nonetheless, counsel reported communicating with Plaintiff by phone about the withdrawal and the need for Plaintiff to respond to the order to show cause regarding service.

No Response - In the Order allowing counsel to withdraw (Doc. 28) the Court gave Plaintiff an additional ten days (through February 14, 2023) to respond to the Order to Show Cause, and directed the Clerk to mail the Order to Plaintiff's last known address. Plaintiff contacted the Court's chambers on February 23, 2023 to report having received the Court's Order and inquiring about responding. Plaintiff was advised by chambers staff that a written response to the Order to Show Cause must be filed with the Clerk of the Court. No response has been filed, and the extended deadline to do so expired ten days ago.

Application of Law to Facts - Dismissal of a party is appropriate where a plaintiff fails to show good cause for delays in service. See Walker v. Sumner, 14 F.3d 1415 (9^thCir. 1994) (upholding dismissal where no showing of good cause for delay in service).

At a minimum, "good cause" means excusable neglect. A plaintiff may also be required to show the following: (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 v. Barnette, 923 F.2d 754, 756 (9th Cir.1991).

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 (3^rd Cir. 1995). "[I]f good cause is not established, the district court may extend time for service upon a showing of excusable neglect." Lemoge v. U.S., 587 F.3d 1188, 1198 (9^th Cir. 2009).

To determine whether a plaintiff demonstrates excusable neglect, courts use the 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 (holding that plaintiff had established excusable neglect for the purposes of Rule 4(m) via the Pioneer-Briones test). The Pioneer-Briones test is as follows:

[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.

Prejudice, Delay and Impact- Defendants, if eventually served, would be brought into litigation which is already almost eight months old. Moreover, Plaintiff's failure to respond to the Order to Show Cause demonstrates he does not intend to take steps to complete service, increasing the delay, potential for prejudice against the unserved defendants, and delaying these proceedings when (and if) additional defendants are introduced later.

Reason for Delay - Plaintiff has failed to provide any reason to explain his delay in service.

Good faith - There appears no reason to conclude that Plaintiff has acted in bad faith, as opposed to simply being dilatory or abandoning this action.

Summary - Plaintiff has failed to show good cause or excusable neglect to justify an extension of time to complete service on Defendants Knipp and Does 1 through 50.

IT IS THEREFORE RECOMMENDED that, pursuant to Rule 4(m), Defendants Knipp and Does 1 through 50 be DISMISSED WITHOUT PREJUDICE.

B. 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.”