Diamond v. Alaska Native Tribal Health Consortium

• Court: District Court, D. Alaska
• Decided: October 14, 2022
• Docket: 3:20-cv-00317
• Status: Unknown

Opinion

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF ALASKA

4 DANIEL B. DIAMOND,

5 Plaintiff,

6 v. Case No. 3:20-cv-00317-SLG-KFR

7 ALASKA NATIVE TRIBAL HEALTH CONSORTIUM, et al., 8 Defendants. 9

10 11 FINDINGS AND RECOMMENDATIONS 12 The Court recommends dismissal without prejudice of Plaintiff’s Second 13 Amended Complaint. Despite being given clear instructions, and multiple 14 opportunities, Plaintiff has failed to effect proper service in this matter and has not 15 demonstrated good cause for this failing. In addition, Plaintiff has failed to properly 16 prosecute this matter or comply with the Court’s instructions regarding proper 17 service. Plaintiff’s failure to comply with the Federal Rules of Civil Procedure 18 warrants dismissal without prejudice of this matter. 19 I. Procedural History 20 Daniel B. Diamond, a self-represented litigant (hereinafter “Plaintiff”), filed 21 this action December 31, 2020 (hereinafter “Complaint”).1 The Court issued an 22 order notifying Plaintiff that his action was deficient because it lacked either the 23 filing fee or an application to waive prepayment of fees and costs.2 On January 28, 24 2021, Plaintiff filed an Application to Proceed in District Court without Prepaying 25 Fees or Costs.3 The Court screened the Complaint according to 28 U.S.C. § 26

27 1 Docket 1. 2 Docket 3. 28 3 Docket 4. 1 1915(e)(2)(B)4 and issued an Order Directing Service and Response.5 2 After service on Defendants Alaska Native Tribal Health Consortium 3 (hereinafter “ANTHC”) and the United States Department of Health and Human 4 Services (hereinafter “HHS”),6 Plaintiff attempted to amend his Complaint by 5 motion.7 The Court denied the motion but gave guidance and leave to amend.8 On 6 August 12, 2021, Plaintiff filed his Second Amended Complaint with a Motion for Late 7 Filing.9 The Court granted Plaintiff’s motion, accepted the Second Amended 8 Complaint, and issued a Second Order Directing Service and Response.8 The United 9 States Marshals Service filed Process Receipts and Returns after serving the Second 10 Amended Complaint on Defendants ANTHC and HHS.9 There is no record that 11 Plaintiff properly served the United States Attorney General or the United States 12 Attorney’s Office for the District of Alaska. 13 On December 7, 2021, Plaintiff filed a Motion for Default Judgment.10 The 14 Government responded in opposition arguing that the Complaint had not been 15 properly served on the United States Attorney General and the United States 16 Attorney’s Office for the District of Alaska pursuant to Federal Rule of Civil 17 Procedure Rule 4(i), which governs serving the United States and its agencies, 18 corporations, officers, or employees.11 The United States sought dismissal of the 19 Second Amended Complaint because service was incomplete and untimely.12 20 On January 13, 2022, the Court issued a Third Order Directing Service and

21 4 Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000) (extending screening 22 requirements to self-represented litigants seeking to proceed in forma pauperis). 5 Docket 5. 23 6 Dockets 14 & 18. 7 Docket 19. 24 8 Docket 20. 9 Dockets 26 & 27. 25 10 Docket 29. 26 11 Docket 30. The United States’ opposition refers to “the Complaint.” Pursuant to Local Rule 15.1 which states that amended complaints replace a previously filed complaint in its 27 entirety, the Court interpreted the Plaintiff’s motion and United States opposition as applying to the Second Amended Complaint. 28 12 Docket 30. 1 Response explaining the requirements of completing service on all unserved 2 Defendants - the United States Attorney General and the United States Attorney’s 3 Office for the District of Alaska - in order to fully and properly complete service.13 4 On June 1, 2022, the Court issued an Order Regarding Notice of Intent to Dismiss 5 warning Plaintiff that service must be completed in accordance with Rule 4 of 6 Federal Civil Procedure; and if not done so by August 29, 2022, this action would be 7 dismissed without further notice.14 8 II. Analysis 9 a. Plaintiff Has Failed to Properly Complete Service. 10 Plaintiff’s Second Amended Complaint makes clear that this is an action 11 pursuant to the Federal Tort Claims Act (FTCA). The United States is the sole proper 12 defendant for an FTCA claim.15 As explained in the Court’s Third Order Directing 13 Service and Response, this requires proper service upon the United States and its 14 agencies, corporations, officers, or employees, in accordance with Rule 4(i) of 15 Federal Civil Procedure.16 16 Plaintiff must follow the Federal Rules of Civil Procedure and the Local Civil 17 Rules for the District of Alaska to complete proper service. Under the Federal Rules,

18 [i]f 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— 19 must dismiss the action without prejudice against that defendant or order that service or order that service be made within a specified 20 time.”17 21 If the plaintiff shows good cause for the failure, the court must extend the 22 time for service for an appropriate period.18 At a minimum, “‘good cause̕ means 23 excusable neglect.”19 To determine whether a plaintiff demonstrates excusable 24 13 Docket 31. 25 14 Docket 32. 26 15 Lance v. U.S., 70 F.3d 1093, 1095 (9th Cir. 1995). 16 Docket 31. 27 17 Fed. R. Civ. P. 4(m). 18 Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013). 28 19 In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). 1 neglect, courts use the Pioneer–Briones test:

2 [T]he determination of whether neglect is excusable is an equitable one that depends on at least four factors: (1) the danger of prejudice 3 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) 4 whether the movant acted in good faith.20 5 Here, Plaintiff has failed to make any effort to show good cause or excusable 6 neglect. An analysis of the Pioneer–Briones test demonstrates that all but the last 7 factor weigh in favor of finding against excusable neglect. 8 1. Danger of Prejudice to Unserved Defendant: Defendants, if eventually 9 served, will be required to respond to a complaint concerning issues that 10 allegedly occurred over four years ago. While this prejudice is limited to 11 the extent that service could promptly be completed, there is no reason to 12 anticipate service in the future. This is particularly so given Plaintiff's 13 failure to demonstrate a desire to proceed with the litigation. 14 2. Length of Delay and Impact: Over three months have passed since service 15 was returned unexecuted. 16 3. Reason for Delay: The reason for the delay appears to be the fact that 17 Plaintiff is deceased.21 In the event this is not the case, it appears as if 18 Plaintiff or his successors in interest are unable or unwilling to continue 19 the prosecution of this case. 20 4. Good Faith: There are no facts to suggest Plaintiff has acted in bad faith. 21 Plaintiff was required to have completed service on or before April 13, 22 2022.22 Despite being given notice, additional time, and a warning that Plaintiff’s 23 case may be dismissed, Plaintiff failed to file any proofs of service by the extended 24 deadline of August 29, 2022. Furthermore, Plaintiff has failed to show good cause 25

26 20 Bateman v. U.S. Postal Service, 231 F.3d 1220, 1223–1224 (9th Cir. 2000). 21 Docket 33. The Court attempted to deliver a copy of its order at Docket 32 on or about 27 June 2, 2022. The Postal Service returned this mailing to the Court on June 8, 2022, stamped “Return to Sender, Deceased, Unable to Forward.” 28 22 Docket 31. 1 or excusable neglect to justify another extension of time to complete service on 2 Defendants. Accordingly, dismissal of this action for failure to complete proper 3 service is appropriate. 4 b. Plaintiff Has Failed to Prosecute this Matter. 5 Additionally, Federal Rule of Civil Procedure 41(b) permits dismissal due to a 6 plaintiff’s failure to prosecute or comply with a court order. In deciding whether to 7 dismiss for failure to prosecute or comply with court orders, a district court must 8 consider five factors: “(1) the public’s interest in expeditious resolution of litigation; 9 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; 10 (4) the public policy favoring disposition of cases on their merits; and (5) the 11 availability of less drastic sanctions.”23 All of the factors weigh in favor of dismissal. 12 An expeditious resolution cannot be reached without service and the Court 13 must manage its docket to facilitate resolutions in all of the cases before it. Further, 14 the extended delay - without any justification from Plaintiff - creates a presumption 15 of prejudice to Defendants.24 A dismissal at this stage, without prejudice, permits 16 the future opportunity for resolution on the merits. Lastly, the Court gave extensive 17 guidance, additional time, and a warning about the failure to serve. The Court 18 cannot move the case toward disposition without Plaintiff's compliance with Court 19 orders or participation in this litigation. The Court finds that no lesser sanction 20 would be satisfactory or effective to promote resolution. 21 / / /

22 23 24 25 26

27 23 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). 28 24 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). 1 2 III. Conclusion 3 IT IS RECOMMENDED that this case be DISMISSED WITHOUT PREJUDICE 4 for failure to serve pursuant to Federal Rule of Civil Procedure 4(m), and failure to 5 prosecute pursuant to Federal Rule of Civil Procedure 41(b). 6 DATED this 13th of October 2022, at Anchorage, Alaska. 7 s/ Kyle F. Reardon 8 KYLE F. REARDON United States Magistrate Judge 9 District of Alaska

10 NOTICE OF RIGHT TO OBJECT 11 Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate 12 judge to hear and determine matters pending before the Court. For dispositive 13 matters, a magistrate judge reports findings of fact and provides recommendations 14 to the presiding district court judge.25 A district court judge may accept, reject, or 15 modify, in whole or in part, the magistrate judge’s order.26 16 A party may file written objections to the magistrate judge’s order within 14 17 fourteen days.27 Objections and responses are limited to five (5) pages in length 18 and should not merely reargue positions previously presented. Rather, objections 19 and responses should specifically identify the findings or recommendations 20 objected to, the basis of the objection, and any legal authority in support. Reports 21 and recommendations are not appealable orders. Any notice of appeal pursuant to 22 Fed. R. App. P. 4(a)(1) should not be filed until entry of the district court’s 23 judgment.28 24

25 26 25 28 U.S.C. § 636(b)(1)(B). 27 26 28 U.S.C. § 636(b)(1)(C). 27 Id. 28 28 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).