Carr v. Naval Base Kitsap Bremerton

• Court: District Court, W.D. Washington
• Decided: September 17, 2020
• Docket: 3:18-cv-06005
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 RUBY L. CARR, CASE NO. 18-6005 RJB 11 Plaintiff, ORDER SETTING DEADLINE 12 FOR SERVICE v. 13 NAVAL BASE KITSAP BREMERTON, 14 Defendant. 15

16 This matter comes before the Court on Plaintiff’s response to the Court’s September 2, 17 2020 Order to Show Cause. Dkt. 12. Plaintiff, acting pro se, alleges that Defendant negligently 18 maintained their commissary parking lot, which cause her to fall and sustain injuries on June 10, 19 2016. Dkt. 3. Plaintiff filed the Complaint on December 4, 2018 but has not yet completed 20 service on Defendant. Id. Fed. R. Civ. P. 4(m) requires Plaintiff to complete service within 90 21 days of filing the Complaint. 22 The Court has considered the Plaintiff’s response and the remainder of the file. Based on 23 the filings and pursuant to Fed. R. Civ. P. 4(m), Plaintiff should have an additional two weeks to 24 complete service that complies with Fed. R. Civ. P. 4(i). 1 2 I. PROCEDURAL HISTORY 3 On December 4, 2018, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) 4 (Dkt. 1) and a proposed complaint (Dkt. 1-1). The court denied her IFP motion (Dkt. 2), and

5 plaintiff paid the filing fee on December 21, 2018. Plaintiff also filed her Complaint on 6 December 4, 2018. Dkt. 3. Plaintiff did not, however, serve her Complaint on Defendant. 7 On January 18, 2019, the Court issued both an Order Regarding Discovery (Dkt. 5) and 8 an Order Regarding Initial Disclosures (Dkt. 6). After receiving no further communication from 9 Plaintiff, the court issued an Order to Show Cause on May 13, 2019 (Dkt. 7), and an Order of 10 Dismissal on June 7, 2019 (Dkt. 8). The record indicates that that Order to Show Cause was sent 11 to an incorrect email address. After realizing the error, the Court vacated the Dismissal Order. 12 Dkt 9. 13 Nothing further was filed in the case until this matter was reassigned to the undersigned 14 on August 31, 2020. Dkt. 10. An Order to Show Cause was issued on September 2, 2020,

15 requiring the Plaintiff to show cause, if any she had, why the case should not be dismissed for 16 failure to prosecute. Dkt. 11. Plaintiff responded on September 10, 2020. Dkt. 12. 17 II. DISCUSSION 18 To commence a lawsuit against the federal government or one of its agencies, a plaintiff 19 must serve both the United States and the specific agency being sued in accordance with Fed. R. 20 Civ. P. 4(i). 21 Additionally, Fed. R. Civ. P. 4(m) provides: 22 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 plaintiff—must dismiss the action 23 without prejudice against that defendant or order that service be made within a 24 1 specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 2 Plaintiff did not serve Defendant within 90 days of filing. Plaintiff still has not 3 served a summons and her Complaint and well over one year has elapsed since the case 4 was filed. Dkt. 3. The first question before the Court is whether “good cause” exists to 5 excuse that failure. In re Sheehan, 253 F.3d 507, 512 (9th Cir.2001). If no good cause 6 exists, then the second question is whether the Court should use its discretionary power to 7 extend the time to complete service. Id. 8 A. PLAINTIFF HAS NOT SHOWN “GOOD CAUSE” 9 If good cause exists, then “Rule 4(m) requires a district court to grant an extension of 10 time[.]” Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007). There is not much guidance on 11 the good cause standard, but it appears to be demanding even for plaintiffs acting pro se. For 12 example, good cause was found to exist in the days when service in person was required when a 13 pro se plaintiff mistakenly sent his summons and complaint to the defendant, the United States, 14 by certified mail. Borzeka v. Heckler, 739 F.2d 444, 446–47 (9th Cir. 1984). In that case, the 15 United States attorney received plaintiff’s complaint, but she let the time allowed for service 16 elapse then promptly filed a motion to dismiss. Id. The court reasoned that there was good 17 cause because the defendant had actual knowledge of the lawsuit, allowing late service would 18 not prejudice the defendant, and dismissal would severely prejudice defendant. Id. at 447. 19 Good cause was not, however, found where a pro se plaintiff failed to comply with the 20 period prescribed by 4(m) by about six weeks. Boudette v. Barnette 923 F.2d 754, 755 (9th Cir. 21 1991). The main difference between the two cases appears to be that good cause was found 22 when plaintiff both made a reasonable effort to complete service within the proscribed time and 23 24 1 that plaintiff’s attempt gave the defendant actual notice of the lawsuit. See id.; compare Borzeka, 2 739 F.2d at 447. 3 Good cause does not exist in this case. Plaintiff, acting pro se, does not appear to allege 4 either that she attempted service or that the Defendant has actual notice of the lawsuit.

5 B. THIS COURT WILL USE ITS DICRETION TO GRANT A FOUR WEEK EXTENSION 6 If no good cause exists, then a court may use its discretion to extend the time allowed to 7 complete service. In Re Sheehan, 253 F.3d at 513. Courts may consider factors including the 8 statute of limitations, prejudice to the defendant, actual notice of the lawsuit, and eventual 9 service. Efaw, 473 F.3d at 1041. There is, however, an outer limit to that discretion. See id. 10 (finding that a court abused its discretion by allowing seven years to elapse between plaintiff 11 filing the complaint and completing service). 12 Based on the allegations in the Complaint, the statute of limitations does not appear to have 13 elapsed. The Federal Tort Claims Act bars tort claims against the United States unless plaintiff 14 presented their claim before the appropriate agency within two years. 28 U.S.C. § 2401(b). Plaintiff 15 appears to have brought her claim before Department of the Navy within two years of her alleged 16 date of injury. See Dkt 3. The remaining factors, however, do not favor granting Plaintiff an 17 extension. The Defendant does not appear to have actual notice of the lawsuit, Plaintiff does not 18 appear to have attempted service, and Defendant could be prejudiced by the more than four years that 19 have elapsed since Plaintiff claims she was injured. 20 After receiving this Court’s Order to Show Cause (Dkt. 11), Plaintiff promptly responded and 21 asks for an extension of time to serve the Defendant (Dkt. 12). Plaintiff says that she has cancer, 22 which has caused her to lose focus, and that the Coronavirus pandemic has made things more 23 difficult. Id. 24 1 These are legitimate concerns, but the amount of time that has elapsed is pushing up against 2 the outer limit of what is acceptable. The Court will allow Plaintiff an additional four weeks to 3 complete service that complies with Fed. R. Civ. P. 4(i). If the Plaintiff wishes to proceed with this 4 case, she should file proof of service in the record on or before October 16, 2020. Failure to do so

5 may result in dismissal of the case. ORDER 6 Accordingly, it is hereby ORDERED that: 7 8 • Plaintiff is granted an extension of four (4) weeks, until October 16, 2020, to 9 complete service on Defendant; 10 • If Plaintiff wishes to proceed with this matter, she SHALL file proof of 11 service in the record by October 16, 2020, and; 12 • Failure to file a proof of service in the record by October 16, 2020, may result 13 in dismissal of the case 14 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 15 to any party appearing pro se at said party’s last known address. 16 Dated this 17th day of September, 2020. A 17

18 ROBERT J. BRYAN 19 United States District Judge 20 21 22 23 24