Emanuel v. Collins

Opinion

1 Rene L. Valladares Federal Public Defender 2 Nevada State Bar No. 11479 3 *Ryan Norwood Assistant Federal Public Defender 4 New Hampshire Bar No. 15604 Ryan_Norwood@fd.org 5 *Amy B. Cleary 6 Ohio State Bar No. 0068425 Amy_Cleary@fd.org 7 411 E. Bonneville Ave., Ste. 250 Las Vegas, Nevada 89101 8 (702) 388-6577 9 *Attorneys for Plaintiff Troy Emanuel, Jr. 10 11 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA Troy Emanuel, Jr., 14 Plaintiff, Case No. 3:20-cv-00566-RCJ-CLB 15 16 v. Order Granting Third Joint Stipulation to Extend Service of Collin, et al., Process Date 17 Defendants. 18 19 20 The parties stipulate that counsel for Plaintiff Troy Emanuel, Jr., shall have 21 an additional 30 days, or until February 2, 2024, to serve Defendant Brandon 22 Stubbs with a summons, the amended complaint, and the order granting the motion 23 to amend the complaint. This is the third stipulation requesting additional time to 24 make service on Defendant Stubbs through alternative means. 25 The parties enter this stipulation under Fed. R. Civ. P. 4(m) in good faith and 26 for good cause based on the following. 27 1 On September 21, 2023, this Court ordered that service of the summons, the 2 amended complaint (ECF No. 139), and the order granting the motion to amend the 3 complaint (ECF No. 129), be served on Defendant Brandon Stubbs by November 20, 4 2023. ECF No. 158. However, given Mr. “Emanuel’s pro se status and the issues 5 with service,” the Court directed the Clerk to issue a summons for Defendant and 6 Stubbs and also directed the U.S. Marshal to serve the summons and above-listed 7 documents on him. ECF No. 158. Unfortunately, the U.S. Marsal could not perfect 8 service on Defendant Stubbs. ECF No. 166. 9 Though Defendant Stubbs’ home address remains under seal (ECF No. 158), 10 Mr. Emanuel’s counsel believed they located Stubbs’ home address and obtained a 11 two-week extension of time from the Court to perfect service through a process 12 server. ECF Nos. 174, 175. Though attempts to serve Defendant Stubbs were made 13 during that two-week period, additional time is necessary to perfect service. 14 The parties then stipulated, with the Court’s permission, to continue the 15 service deadline for Stubbs until January 3, 2024, to allow Mr. Emanuel additional 16 time to perfect service. ECF Nos. 176, 177. Since then, Mr. Emanuel has diligently 17 attempted service with the assistance of a retained process server. The process 18 server has attempted service at Stubbs’ home in Texas and contacted his wife. The 19 process server has also determined Stubbs is currently employed by the Texas 20 Department of Criminal Justice (TDCJ). The process service spoke with the TDCJ 21 Warden’s Assistant to attempt to perfect service at TDCJ; however, TDCJ’s Warden 22 has elected not to permit service at TDCJ. An FPD investigator has also emailed 23 Stubbs in an effort to perfect service but Stubbs has not responded. For these 24 reasons, Mr. Emanuel’s counsel believe that Stubbs is aware of this lawsuit and 25 purposely avoiding service. 26 An extension of the time for service is thus requested for good cause. See 27 Federal Rule of Civil Procedure Rule 4(m); Lemoge v. United States, 587 F.3d 1188, 1] | 1198 (9th Cir. 2009) (Rule4(m) establishes a “mandatory” rule that the “district court must extend time for service upon a showing of good cause”). The parties submit good cause exists here to extend the time for service on Defendant Stubbs, 4|| including: (1) Mr. Emanuel’s status as an indigent plaintiff; (2) the failed attempt at service on Defendant Stubbs by the U.S. Marshal; (3) the failed attempts by the 6|| U.S. Marshals, the FPD, and Mr. Emanuel’s process server to serve Stubbs at his 7|| home address and place of employment; (4) Stubbs’ apparent purposeful avoidance 8| | of service; and (5) the need for Mr. Emanuel’s counsel to explore alternative 9|| methods of service. The parties therefore stipulate to extend the service date on 10| | Defendant Stubbs for 30 days, until February 2, 2024. See Fed. R. Civ. P. 4(m); Lemoge, 587 F.3d. at 1198. 12 Dated January 3, 2024. 13 Aaron D. Ford Rene L. Valladares Attorney General Federal Public Defender 15 s/ Andrew C. Nelson s/ Ryan Norwood ‘Andrew C. Nel Roan Nomen nerew Netson Ryan Norwood 17 Deputy Attorney General Assistant Federal Public Defender 18 19 s/ Amy B. Cleary Amy B. Cleary 90 Assistant Federal Public Defender 21 ORDER 22 Accordingly, Plaintiff shall have until February 2, 2024 to effectuate service on Defendant Stubbs. No further extensions will be granted absent extraordinary 23 circumstances. 24|) IT IS SO ORDERED. 25 Dated: January 3, 2024. ‘ 26 27 UNITED STATES\MAGISTRATE JUDGE