1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *
7 OMARI NAEEM BEY, Case No. 2:19-CV-221 JCM (VCF)
8 Plaintiff(s), ORDER
9 v.
10 STATE OF NEVADA, et al.,
11 Defendant(s).
12 13 Presently before the court is defendant Quality Medical Imaging of Nevada LLC.’s 14 (“Quality”) motion to dismiss. (ECF No. 23). Plaintiff Omari Naeem Bey (“plaintiff”) filed a 15 response (ECF No. 26), to which Quality replied (ECF No. 29). 16 Also before the court is State of Nevada ex rel. Nevada Department of Corrections, 17 Director Greg Cox, Warden Dwight Neven, Correctional Officer Franco’s (“state defendants”) 18 motion to dismiss. (ECF No. 25). Plaintiff filed a response (ECF No. 30), to which state 19 defendants replied (ECF No. 31). 20 I. Background 21 As relevant here, on February 5, 2019, plaintiff brought this action, alleging (1) a 22 violation of his Eighth Amendment rights, (2) Monell liability, (3) sexual molestation as the tort 23 of assault, (4) sexual molestation as the tort of battery, (5) sexual molestation as the tort of 24 intentional infliction of emotional distress, (6) battery, during his incarceration at High Desert 25 State Prison. 26 After multiple attempts, plaintiff served Quality on May 7, 2019. Plaintiffs attempted to 27 serve state defendants through certified mail, which receipt was acknowledged on April 16, 28 2019. Plaintiff has not otherwise attempted service on state defendants. Now, both Quality and 1 state defendants move to dismiss plaintiff’s complaint for failure to comply with Federal Rule of 2 Civil Procedure 4(m). 3 II. Legal Standard 4 Rule 4(m) provides the deadline for service as follows: 5 “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 6 plaintiff–must dismiss the action without prejudice against that defendant or order that service be made within a specified time. 7 But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” 8 9 Federal Rule of Civil Procedure 12(b)(5) allows a party to file a motion to dismiss based 10 on a violation of 4(m). Courts have broad “discretion to extend time for service under Rule 11 4(m),” Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007), and may extend time for service 12 even after the Rule 4(m) deadline has expired, Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th 13 Cir. 2003). In addition, the Federal Rules of Civil Procedure “should be construed, administered, 14 and employed by the court and the parties to secure the just, speedy, and inexpensive 15 determination of every action and proceeding.” Fed. R. Civ. P. 1. 16 III. Discussion 17 Pending before the court is Quality’s and state defendant’s motion to dismiss the 18 plaintiff’s complaint for failure to comply with Rule 4(m). Quality asserts that the complaint 19 must be dismissed because the plaintiff missed his service deadline without good cause. State 20 defendants assert the complaint should be dismissed because plaintiff missed the service deadline 21 by serving the government through mail in violation of federal and Nevada rules. The court will 22 address each motion in turn. 23 A. Quality’s motion to dismiss 24 Both parties agree that the Rule 4(m) deadline for plaintiff to properly serve Quality was 25 May 6, 2019. Both parties also agree that plaintiff missed this deadline by serving Quality on 26 May 7, 2019. Thus, the only question before the court is whether plaintiff missing this deadline 27 is excusable under the law. 28 1 The Ninth Circuit has explained that Rule 4(m) “provides two avenues for relief” for 2 parties who miss their service deadline. Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 3 2009). The first avenue is mandatory: upon a showing of good cause, a district court must 4 extend the time for service. Id. The second avenue is discretionary: if the plaintiff fails to 5 establish good cause, a district court may nevertheless extend the time for service so long as the 6 plaintiff demonstrates at least excusable neglect. Id. 7 As an initial matter, the court is not convinced regarding the plaintiff’s good cause 8 argument. The court must decide whether plaintiff’s failure to comply with the deadline was a 9 result of excusable neglect. Excusable neglect “encompass[es] situations in which the failure to 10 comply with a filing deadline is attributable to negligence” and includes “omissions caused by 11 carelessness.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 394, (1993). The 12 determination of whether neglect is excusable “is at bottom an equitable one, taking account of 13 all relevant circumstances surrounding the party's omission.” Id. at 395. 14 When making extension decisions under Rule 4(m) a district court may consider factors 15 “like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and 16 eventual service.” Efaw, 473 F.3d at 1041 (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 17 381, 383 (7th Cir. 1998)). 18 Here, all four factors identified above weigh in favor of retroactive extension of time for 19 service. See Uniloc 2017 LLC v. Box, Inc., No. 18-cv-07038-JST, 2019 WL 1571880, at *1 20 (N.D. Cal. 2019). Plaintiff argues the statute limitations period for these claims lapsed soon after 21 the complaint was filed, so any dismissal of this action would function as a dismissal with 22 prejudice 1. Additionally, the court does not find allowing the plaintiff an extra day for 23 accomplishing service prejudices Quality. Quality failed to argue how this one-day period 24 25 26 1 The court recognizes that plaintiff’s 42 U.S.C. § 1983 claims, assault and battery claims, and intentional infliction of emotional distress claim are all subject to a two-year statute 27 of limitation. See Nev. Rev. Stat. § 11.190(4)(e); Perez v. Seevers, F.2d 425 (9th. Cir. 1989). The underlying conduct occurred on April 27, 2017. Thus, two years would run on April 27, 28 2019. Plaintiff brought this action on February 5, 2019. Thus, if plaintiff’s claims were dismissed, they would be time-barred. 1 impacted the case or prejudiced it. Lastly, plaintiff served defendant on May 7, 2019, which 2 gave defendant Quality actual—albeit late—notice of the lawsuit. 3 “The just, speedy and efficient disposition of plaintiffs’ claim on its merits is better 4 served by ignoring a day’s dilatoriness in accomplishing service than requiring plaintiffs to re- 5 commence their suit.” Tyson v. City of Sunnyvale, 159 F.R.D. 528 (N.D. Cal. 1995). See Fed. R. 6 Civ. P. 1. Thus, defendant Quality’s motion to dismiss is denied, and this court grants plaintiff a 7 retroactive, single-day extension of the service deadline to May 7, 2019, under 4(m), rather than 8 dismiss the action without prejudice. 9 B. State defendants’ motion to dismiss 10 The state defendants also move to dismiss for lack of service.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *
7 OMARI NAEEM BEY, Case No. 2:19-CV-221 JCM (VCF)
8 Plaintiff(s), ORDER
9 v.
10 STATE OF NEVADA, et al.,
11 Defendant(s).
12 13 Presently before the court is defendant Quality Medical Imaging of Nevada LLC.’s 14 (“Quality”) motion to dismiss. (ECF No. 23). Plaintiff Omari Naeem Bey (“plaintiff”) filed a 15 response (ECF No. 26), to which Quality replied (ECF No. 29). 16 Also before the court is State of Nevada ex rel. Nevada Department of Corrections, 17 Director Greg Cox, Warden Dwight Neven, Correctional Officer Franco’s (“state defendants”) 18 motion to dismiss. (ECF No. 25). Plaintiff filed a response (ECF No. 30), to which state 19 defendants replied (ECF No. 31). 20 I. Background 21 As relevant here, on February 5, 2019, plaintiff brought this action, alleging (1) a 22 violation of his Eighth Amendment rights, (2) Monell liability, (3) sexual molestation as the tort 23 of assault, (4) sexual molestation as the tort of battery, (5) sexual molestation as the tort of 24 intentional infliction of emotional distress, (6) battery, during his incarceration at High Desert 25 State Prison. 26 After multiple attempts, plaintiff served Quality on May 7, 2019. Plaintiffs attempted to 27 serve state defendants through certified mail, which receipt was acknowledged on April 16, 28 2019. Plaintiff has not otherwise attempted service on state defendants. Now, both Quality and 1 state defendants move to dismiss plaintiff’s complaint for failure to comply with Federal Rule of 2 Civil Procedure 4(m). 3 II. Legal Standard 4 Rule 4(m) provides the deadline for service as follows: 5 “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 6 plaintiff–must dismiss the action without prejudice against that defendant or order that service be made within a specified time. 7 But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” 8 9 Federal Rule of Civil Procedure 12(b)(5) allows a party to file a motion to dismiss based 10 on a violation of 4(m). Courts have broad “discretion to extend time for service under Rule 11 4(m),” Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007), and may extend time for service 12 even after the Rule 4(m) deadline has expired, Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th 13 Cir. 2003). In addition, the Federal Rules of Civil Procedure “should be construed, administered, 14 and employed by the court and the parties to secure the just, speedy, and inexpensive 15 determination of every action and proceeding.” Fed. R. Civ. P. 1. 16 III. Discussion 17 Pending before the court is Quality’s and state defendant’s motion to dismiss the 18 plaintiff’s complaint for failure to comply with Rule 4(m). Quality asserts that the complaint 19 must be dismissed because the plaintiff missed his service deadline without good cause. State 20 defendants assert the complaint should be dismissed because plaintiff missed the service deadline 21 by serving the government through mail in violation of federal and Nevada rules. The court will 22 address each motion in turn. 23 A. Quality’s motion to dismiss 24 Both parties agree that the Rule 4(m) deadline for plaintiff to properly serve Quality was 25 May 6, 2019. Both parties also agree that plaintiff missed this deadline by serving Quality on 26 May 7, 2019. Thus, the only question before the court is whether plaintiff missing this deadline 27 is excusable under the law. 28 1 The Ninth Circuit has explained that Rule 4(m) “provides two avenues for relief” for 2 parties who miss their service deadline. Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 3 2009). The first avenue is mandatory: upon a showing of good cause, a district court must 4 extend the time for service. Id. The second avenue is discretionary: if the plaintiff fails to 5 establish good cause, a district court may nevertheless extend the time for service so long as the 6 plaintiff demonstrates at least excusable neglect. Id. 7 As an initial matter, the court is not convinced regarding the plaintiff’s good cause 8 argument. The court must decide whether plaintiff’s failure to comply with the deadline was a 9 result of excusable neglect. Excusable neglect “encompass[es] situations in which the failure to 10 comply with a filing deadline is attributable to negligence” and includes “omissions caused by 11 carelessness.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 394, (1993). The 12 determination of whether neglect is excusable “is at bottom an equitable one, taking account of 13 all relevant circumstances surrounding the party's omission.” Id. at 395. 14 When making extension decisions under Rule 4(m) a district court may consider factors 15 “like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and 16 eventual service.” Efaw, 473 F.3d at 1041 (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 17 381, 383 (7th Cir. 1998)). 18 Here, all four factors identified above weigh in favor of retroactive extension of time for 19 service. See Uniloc 2017 LLC v. Box, Inc., No. 18-cv-07038-JST, 2019 WL 1571880, at *1 20 (N.D. Cal. 2019). Plaintiff argues the statute limitations period for these claims lapsed soon after 21 the complaint was filed, so any dismissal of this action would function as a dismissal with 22 prejudice 1. Additionally, the court does not find allowing the plaintiff an extra day for 23 accomplishing service prejudices Quality. Quality failed to argue how this one-day period 24 25 26 1 The court recognizes that plaintiff’s 42 U.S.C. § 1983 claims, assault and battery claims, and intentional infliction of emotional distress claim are all subject to a two-year statute 27 of limitation. See Nev. Rev. Stat. § 11.190(4)(e); Perez v. Seevers, F.2d 425 (9th. Cir. 1989). The underlying conduct occurred on April 27, 2017. Thus, two years would run on April 27, 28 2019. Plaintiff brought this action on February 5, 2019. Thus, if plaintiff’s claims were dismissed, they would be time-barred. 1 impacted the case or prejudiced it. Lastly, plaintiff served defendant on May 7, 2019, which 2 gave defendant Quality actual—albeit late—notice of the lawsuit. 3 “The just, speedy and efficient disposition of plaintiffs’ claim on its merits is better 4 served by ignoring a day’s dilatoriness in accomplishing service than requiring plaintiffs to re- 5 commence their suit.” Tyson v. City of Sunnyvale, 159 F.R.D. 528 (N.D. Cal. 1995). See Fed. R. 6 Civ. P. 1. Thus, defendant Quality’s motion to dismiss is denied, and this court grants plaintiff a 7 retroactive, single-day extension of the service deadline to May 7, 2019, under 4(m), rather than 8 dismiss the action without prejudice. 9 B. State defendants’ motion to dismiss 10 The state defendants also move to dismiss for lack of service. State defendants argue 11 they have not been served for “nearly five months” and the court should dismiss under Federal 12 Rule Civil Procedure 12(b)(5). (ECF No. 25). It is uncontested that the plaintiff sent a copy of 13 the complaint and summons to the Nevada attorney general’s office in Carson City, Nevada by 14 certified mail. It was signed for on April 16, 2019. Id. 15 However, defendants contend that mailing a copy of the summons and complaint to the 16 Nevada attorney general’s office in Carson City is not sufficient to serve the state defendants in 17 this case. (ECF No. 31 at 3). The plaintiff disagrees and argues certified mail can be used to 18 effectuate proper service. (ECF No. 30 at 3). The court first turns to the question of whether the 19 plaintiff’s service method was sufficient under well-established law. 20 Both parties correctly identify that Federal Rule Civil Procedure 4(j)(2) governs this issue 21 and prescribes the method for serving a state or local government entity. Rule 4(j)(2) provides 22 two options for a state or state department to be properly served: “(A) delivering a copy of the 23 summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the 24 manner prescribed by that state’s law for serving a summons or like process on such a 25 defendant.” See Fed. R. Civ. P. 4(j)(2). 26 Under subsection (A), service may be effected by serving the summons and complaint on 27 the current governor. Hamer v. Nevada, Department of Employment, Rehabilitation and 28 Training, Vocational Rehabilitation Bureau, No.: 2:15-cv-1036-GMN-GWF, 2018 WL 1567850, 1 at *2 (D. Nev. Mar. 30, 2018); Uranga v. Adams, No. 3:10-cv-00014-RCJ-RAM, 2011 WL 2 147909, at *4 (D. Nev. Jan. 14, 2011). Plaintiff failed to do so. Thus, Plaintiff did not properly 3 effect service under subsection (A) of Rule 4(j)(2). 4 Plaintiff’s method of service for the state defendants also fails under 4(j)(2) subsection 5 (B). Subsection (B) allows the state to be served pursuant to the rules under that state’s law. 6 Here, the court looks to Nevada law. 7 Under Nevada law, a plaintiff must serve both the attorney general and a person serving 8 in the office of the administrative head of the relevant state entity. NRS § 41.031(2)(a)–(b); see, 9 e.g., Hamer v. Nevada, Department of Employment, Rehabilitation and Training, Vocational 10 Rehabilitation Bureau, No.: 2:15-cv-1036-GMN-GWF, 2018 WL 1567850, at *3 (D. Nev. Mar. 11 30, 2018); Johnson v. Clark Cnty. Sch. Dist., No. 2:14-cv-02213-JAD-VCF, 2016 WL 3156059, 12 at *1 (D. Nev. June 3, 2016); Mango v. DETR, No. 2:10-cv-457-JCM-RJJ, 2011 WL 148280, at 13 *2 (D. Nev. Jan. 14, 2011). 14 Neither “dispatching the summons and complaint through email [n]or U.S. mail (even 15 certified mail) is sufficient to effectuate service of process under the Nevada or federal rules.” 16 Johnson v. Clark Cnty. Sch. Dist., No. 2:14-cv-02213-JAD-VCF, 2016 WL 3156059, at *1 (D. 17 Nev. June 3, 2016); see High Sierra Holistics, LLC v. Department of Taxation, No. 3:19-CV- 18 00270-LRH-CBC, 2019 WL 3778068, at *1 (D. Nev. June 3, 2016). 19 Here, plaintiff’s service fails for two reasons. He failed to serve a person in the office of 20 the administrative head of the relevant state entity or provide any proof of this action. NRS 21 § 41.031(2)(b). Plaintiff also attempted to serve the state defendants by certified mail which is 22 insufficient to effectuate service of process. Thus, plaintiff’s method of service was insufficient. 23 Next, the court addresses whether the plaintiff should be granted additional time to 24 properly serve state defendants under 4(m). As discussed above, a district court may consider 25 factors ‘like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and 26 eventual service.’ Efaw, 473 F.3d at 1041 (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 27 381, 383 (7th Cir. 1998)). 28 1 Based on the four factors discussed above, the court finds the plaintiff should be granted more time to sufficiently serve state defendants. Admittedly, the plaintiff did not—and still has 3 | not—properly served the state defendants. Nonetheless, the state defendants have not suffered 4) any prejudice because they received actual notice of this lawsuit. Conversely, plaintiff's claims 5 will be time barred if dismissed, which in effect, would serve as a dismissal with prejudice. The court finds that it would be harsh and inequitable to dismiss plaintiff's claims without any 7 | disposition of the merits, considering the gravity of the allegations. 8 State defendants’ motion to dismiss is denied. Plaintiff is ordered to properly serve defendants State of Nevada ex rel. Nevada Department of Corrections, Director Greg Cox, 10 | Warden Dwight Neven, Correctional Officer Franco within thirty days of this order. Failure to 11 | properly serve these defendants will result in dismissal upon a future 12(b)(5) motion. Cc. Conclusion 13 | Accordingly, 14 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Defendant Quality’s 15 motion to dismiss (ECF No. 23) be, and the same hereby is, DENIED. 16 IT IS FURTHER ORDERED that state defendants’ motion to dismiss (ECF No. 25) be, 17 | and the same hereby is, DENIED. 18 IT IS FURTHER ORDERED that plaintiff serve state defendants within thirty days of 19 this order. 20 DATED September 30, 2019. CPLias C Malta. □ 21 UNITED,STATES DISTRICT JUDGE = 22 23 24 25 26 27 28
es C. Mahan District Judge -6-