Blandino v. Las Vegas Metro Police Department

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 KIM BLANDINO, Case No. 2:22-cv-0562-GMN-EJY

5 Plaintiff, ORDER 6 v.

7 LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., 8 Defendants. 9

10 I. BACKGROUND 11 Pending before the Court is pro se Plaintiff Kim Blandino’s Motion for Extension of Time 12 to Serve Defendants the Summons and Complaint Pursuant to LR IA 6-1. ECF No. 5. Plaintiff filed 13 his lawsuit against Defendants Las Vegas Metropolitan Police Department (“LVMPD”), Sheriff Joe 14 Lombardo, and ten unidentified “Doe” employees of the LVMPD on April 4, 2022. ECF No. 1. 15 Plaintiff brings this action alleging violations arising from his May 21, 2019 arrest and subsequent 16 detention. Id. at 9, 11-14. Having missed the July 7, 2022 deadline by which to serve Defendants, 17 Plaintiff filed the instant Motion on July 22, 2022. ECF No. 5. Plaintiff’s Motion says he was unable 18 to complete service because Plaintiff has been “extremely busy” appealing his state court conviction 19 in State of Nevada v. Kim Blandino, Case No. C-19-341767-1, and is also occupied by a civil lawsuit 20 (Blandino v. Federico, Case No. 2:21-cv-01262-JAD-EJY). Id. at 2. In his Motion, Plaintiff asks 21 the Court to extend the service deadline for an “indefinite” amount of time so that he may serve 22 Defendants. Id. at 3. 23 II. LEGAL STANDARD 24 Rule 4(m) of the Federal Rules of Civil Procedure provides 90 days in which to complete 25 service of the summons and complaint upon a defendant. Fed. R. Civ. P. 4(m); see also In re 26 Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). Nevertheless, a district court has broad discretion to 27 fashion an appropriate service deadline under Rule 4(m) of the Federal Rules of Civil Procedure. 1 Fed. R. Civ. P. 4(m); Reberger v. Dzurenda, Case No. 3:17-cv-00552-RCJ-WGC, 2021 WL 2 6494783, at *2 (D. Nev. Dec. 1, 2021); Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). This 3 includes the power to grant an extension after the original service deadline has expired. Efaw, 473 4 F.3d at 1041. Upon a showing of good cause, a court must grant an extension of the service period 5 under the Rules. Id. Absent good cause, a court may still grant such an extension if the plaintiff can 6 demonstrate failure to serve due to excusable neglect. Id. Factors to be considered include but are 7 not limited to whether there is “a statute of limitations bar, prejudice to the defendant, actual notice 8 of a lawsuit, and eventual service.” Id. 9 III. DISCUSSION 10 The Court finds Plaintiff’s representation that he was unable to serve Defendants due to being 11 otherwise occupied litigating his criminal and civil cases insufficient to establish good cause. By 12 Plaintiff’s own admission, being on probation places him “in a much better position to move forward 13 with this matter than if [Plaintiff] was in prison”; yet, Plaintiff requests an indefinite extension of 14 the service deadline without demonstrating any effort to effect service in almost four months. ECF 15 No. 5 at 3; see Stone v. Abumeri, Case No. 1:19-cv-00703-DAD-HBK (PC), 2022 WL 2718818, at 16 *6 (E.D. Cal. July 13, 2022) (dismissing without prejudice where Plaintiff “took no action” to serve 17 Defendant without explanation). Pro se litigants, like all parties, are bound by the Federal Rules of 18 Civil Procedure. Lapina v. Am. Addiction Centers, Inc., Case No. 2:17-cv-01943-JAD-CWH, 2018 19 WL 6991160, at *1 (D. Nev. Oct. 29, 2018). 20 However, absent any indication that Defendants will be prejudiced by granting a brief 21 extension, and considering Plaintiff’s representation that he has the ability and intention to litigate 22 this matter while on probation, the Court exercises its discretion to grant Plaintiff a one time 30 day 23 extension to serve Defendants. If Plaintiff does not achieve service by August 22, 2022, the Court 24 will recommend dismissal of the action without prejudice. 25 IV. ORDER 26 IT IS HEREBY ORDERED that Plaintiff’s Motion for Extension of Time to Serve 27 Defendants the Summons and Complaint Pursuant to LR IA 6-1 is GRANTED in part and DENIED ] IT IS FURTHER ORDERED that Plaintiff must serve Defendants on or before August 2 2 || 2022. No further extensions will be granted. 3 IT IS FURTHER ORDERED that failure to serve Defendants within the 30 day peri 4 || provided by the Court will result in a recommendation to dismiss this action without prejudice. 5 Dated this 26th day of July, 2022.

7 . ELAYNA’J. YOU: H 8 UNITEDSTATES MAGI TE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28