Estrada v. Las Vegas Metro Police Department

• Court: District Court, D. Nevada
• Decided: July 24, 2023
• Docket: 2:22-cv-02089
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Michael Estrada, Case No.: 22-cv-02089-JAD-NJK

4 Plaintiff Order Denying Defendant’s Motion to 5 v. Dismiss, Denying Plaintiff’s Motion to Amend, and Extending Time to Complete 6 Las Vegas Metropolitan Police Department; Service of Process the State of Nevada; Barrett-Jackson, Inc.; 7 and the City of Paradise, NV, [ECF Nos. 11, 15]

8 Defendants

9 Pro se plaintiff Michael Estrada sues the Las Vegas Metropolitan Police Department 10 (Metro), the State of Nevada, Barrett-Jackson, Inc., and the City of Paradise, Nevada for 11 perceived violations of his civil rights while he was transported by the police.1 Metro moves to 12 dismiss under Federal Rule of Civil Procedure (FRCP) 12(b)(5), contending that Estrada’s 13 service was ineffective.2 I find that Estrada failed to properly serve Metro under federal and 14 Nevada law, but I deny the motion to dismiss and instead give Estrada until August 23, 2023, to 15 properly serve Metro. 16 Discussion 17 I. Legal standard 18 This court “is without personal jurisdiction over a defendant unless the defendant has 19 been served” in accordance with federal law.3 Service on a state or local government agency is 20 effected by either “delivering a copy of the summons and of the complaint to its chief executive 21

22 1 ECF No. 1. 2 ECF No. 11. 23 3 Crowley v. Bannister, 734 F.3d 967, 974–75 (9th Cir. 2013) (quoting Travelers Case. & Sur. Co. of Am v. Brenneke, 551, F.3d 1132, 1135 (9th Cir. 2009)). 1 officer” or “in the manner prescribed by [Nevada] law.”4 Nevada law requires the summons and 2 complaint to be personally served on the Attorney General and the person serving as the 3 administrative head of the named public entity.5 Service of process by mail—certified or 4 otherwise—is thus ineffective under both federal and Nevada law.6 When service is ineffective,

5 the court must grant a time extension to cure service if the plaintiff can show good cause for the 6 defect.7 The Ninth Circuit has recognized that, “at a minimum, good cause means excusable 7 neglect.”8 8 II. Estrada’s service was ineffective. 9 Metro argues that Estrada’s attempt at service was ineffective because it received 10 Estrada’s complaint by mail on February 9, 2023, and separately received the summons by mail 11 about a month later.9 Estrada does not dispute that he did not properly serve Metro and requests 12 I grant him the opportunity to try again.10 Because service by mail is ineffective, I find that 13 Estrada has not effectuated service on Metro. 14 III. Dismissal is not yet warranted.

15 If a plaintiff fails to effectuate service, FRCP 4(m) gives district courts discretion to 16 determine whether to grant him an extension of time to effect service despite the lack of good 17 18

19 4 Fed. R. Civ. P. 4(j)(2). 5 Nev. R. Civ. P. 4.2(d). 20 6 Nev. R. Civ. P. 4.2(d); Campbell v. Gasper, 2012 F.R.D. 139, 161 (D. Nev. 1984) (“Service by 21 mail, even if actually effected, does not constitute personal service.”). 7 Fed. R. Civ. P. 4(m). 22 8 Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991) (cleaned up). 23 9 ECF No. 11 at 3. 10 ECF No. 17 at 1–2. 1 cause.11 This was pro se Estrada’s first attempt at service. And though he is still “bound by the 2 rules of procedure,”12 the Ninth Circuit “recognizes that it has a duty to ensure a pro se litigants 3 do not lose their right to a hearing on the merits of their claim due to ignorance of technical 4 procedural requirements.”13 Indeed, Nevada acknowledges that its service rules can be

5 confusing and directs courts to grant a reasonable extension to complete service.14 As Estrada is 6 proceeding pro se and in forma paperis, it would be prejudicial to require him to pursue his 7 allegations in a new complaint due to a curable defect. So I find good cause to extend Estrada’s 8 deadline for service, deny Metro’s motion to dismiss without prejudice to its ability to reassert 9 the same arguments should service be accomplished, and instead give Estrada until August 23, 10 2023, to cure the defect and properly serve Metro with the summons and complaint together by 11 personal service in the manner that NRCP 4.2 requires. 12 IV. Estrada’s motion to amend is denied. 13 Estrada moves to amend his complaint, claiming that he wants to remove some 14 defendants and add others.15 Estrada must attach his proposed amended complaint to his motion

15 seeking leave to amend.16 Because Estrada did not attach the proposed amended pleading, I am 16 unable to determine whether justice requires me to grant leave to amend. So I deny his motion to 17 amend without prejudice to his ability to file a new motion with his proposed complaint attached. 18

11 See e.g., Henderson v. United States, 517 U.S. 654, 662 (1996) (“[I]n 1993 amendments to the 19 Rules, courts have been accorded discretion to enlarge the 120-day period ‘even if there is no good cause shown.”’). 20 12 Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). 21 13 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (citing Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984)). 22 14 Nev. R. Civ. P. 4.2(d)(6); Harris v. State, 510 P.3d 802 (Nev. June 2, 2022). 23 15 ECF. No. 15. 16 LR 15-1. Conclusion 2 IT IS THEREFORE ORDERED that defendant Las Vegas Metropolitan Police 3|| Department’s motion to dismiss [ECF No. 11] is DENIED. Plaintiff Michael Estrada has until August 23, 2023, to effectuate legal service of process on Metro and file proof of that service with the court. Failure to do so could result in dismissal without further prior notice. 6 IT IS FURTHER ORDERED that Estrada’s motion to amend his complaint [ECF No. 15] is DENIED without prejudice to his ability to file a new motion that complies with Local 8] Rule 15-1. cine 10 USS. District Judge JennifecA. Dorsey □ July 24, 2023 1] 12 13 14 15 16 17 18 19 20 21 22 23