Fleming v. Las Vegas Metropolitan Police Department

• Court: District Court, D. Nevada
• Decided: March 14, 2024
• Docket: 2:23-cv-00177
• Status: Unknown

Opinion

1 MARGARET A. MCLETCHIE, Nevada Bar No. 10931 PIETER M. O’LEARY, Nevada Bar No. 15297 3| | LEO S. WOLPERT, Nevada Bar No. 12658 MCLETCHIE LAW GROUP, PLLC 3) | 602 South 10" Street 4 Las Vegas, NV 89101 Telephone: (702) 728-5300; Facsimile: (702) 425-8220 | Email: maggie@nvlitigation.com ‘ Counsel for Plaintiff William Fleming 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9) | WILLIAM FLEMING, an individual, Case No.: 2:23-cv-00177-RFB-EJY 10 , Plaintiff, 11 Vs. PLAINTIFF’S UNOPPOSED MOTION FOR EXTENSION OF LAS VEGAS METROPOLITAN POLICE TIME TO SERVE DEFENDANTS 13| | DEPARTMENT, a Municipal Corporation; Ze 3 OFFICER JAVON CHARLES, an individual; Es 14| | OFFICER TIMOTHY NYE, an individual; 15 OFFICER GABRIEL LEA, an individual; OFFICER CODY GRAY, an _ individual; ~ 16| | OFFICER SUPREET KAUR, as an individual; OFFICER HALEY ANDERSEN, as an individual; SERGEANT JOHN 18 JOHNSON, as an individual; CAPTAIN DORI KOREN, as an individual; OFFICER 19| | RICHARD PALACIOS, as an individual; OFFICER PATRICK WHEARTY, as an 20| | individual; OFFICER ANDREW WOOD, as | 0 individual; OFFICER IZAYA HARRIS, as an individual; OFFICER CHAD ROWLETT, 22| | as an individual; OFFICER RYAN FESLER, as an individual; OFFICER NICHOLAS 23! | PEREZ, as an individual; DOE OFFICERS V a4] | ~ X, individuals. 95 Defendants. 26 27 28

1 MEMORANDUM OF POINTS AND AUTHORITIES 2 Plaintiff William Fleming, by and through his counsel of record, hereby moves this 3| |Court for an order extending by seven (7) days the time in which to complete service of 4| |process upon Defendant Officers Izaya Harris, Chad Rowlett, Ryan Fesler, and Nicholas 5| | Perez in the above-captioned matter. 6 FRCP 4(m) mandates that, if a defendant is not served within 90 days after the 7| |complaint is filed, “the court—on motion or on its own after notice to the plaintiff—must 8] |dismiss the action without prejudice against that defendant or order that service be made 9| | within a specified time.” 90 days after the operative complaint (ECF No. 40) was filed is 10} |March 13, 2024. 11 FRCP 4(m) “requires a district court to grant an extension of time if good cause is 12] |shown and permits the district court to grant such an extension even absent good cause.” 13] | Williams v. Bellagio Hotel & Casino, No. 2:23-cv-00325-JAD-DJA, 2023 U.S. Dist. LEXIS 14] 157075, at *4 (D. Nev. Sep. 6, 2023) (quoting Mann v. American Airlines, 324 F.3d 1088, 15} 1090 n.2 (9th Cir. 2003)). Here, as argued below, good cause exists for failure to effectuate 16] |service. 17 Alternatively, Plaintiff demonstrates excusable neglect in failing to effectuate 18] |service. “District courts also ‘have broad discretion to extend time for service’ and should 19} | ‘consider factors like a statute of limitations bar, prejudice to the defendant, actual notice of 20| |a lawsuit, and eventual service.’” Williams, 2023 U.S. Dist. LEXIS 157075, at *4 (quoting |Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007)). 22 Finally, on March 13, 2024, Plaintiffs counsel spoke with Defendants’ counsel, 23| |who indicated Defendants would not oppose the instant request. Thus, this Court should 24| |extend the deadline to effectuate service upon Defendants by seven (7) days. 25 A. Good Cause Exists to Extend the Service Deadline. 26 ““Good cause to avoid dismissal may be demonstrated by establishing, at a 27| |minimum, excusable neglect,’ and may be supported by a further showing that ‘the party to 28| |be served personally received actual notice of the lawsuit,’ ‘the defendant would suffer no

|prejudice,’ and ‘plaintiff would be severely prejudiced if his complaint were dismissed.’” 2| | Williams, 2023 U.S. Dist. LEXIS 157075, at *4 (quoting Lemoge v. United States, 587 F.3d 3] |1188, 1198 n.3 (9th Cir. 2009)). 4 Good cause exists here to extend the time for serving the above-named Defendants 5| | because of unexpected personal and medical issues, competing deadlines, and staffing issues 6| | for Plaintiffs counsel. 7 Here, although Plaintiff cannot demonstrate that named Defendants have received 8] |notice of the lawsuit, they cannot demonstrate that they would suffer prejudice, as discovery |has recently begun in this matter. Thus, named Defendants who will not ultimately be represented 10] |by the same counsel as other Defendants would have ample opportunity to obtain counsel and 11] |prepare for litigation. Plaintiff, by contrast, would be severely prejudiced. Thus, good cause 12] exists to extend the service deadline by seven (7) days. 13 B. Alternatively, Plaintiff Demonstrates Excusable Neglect and the Cour 14 Should Exercise Its Discretion to Extend the Service Deadline. 15 To determine whether excusable neglect has been shown under FRCP 4(m), the 16] |court must examine the following factors: “(1) the danger of prejudice to the opposing party; 17| |(2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for 18] |the delay; and (4) whether the movant acted in good faith.” Bonham v. Daniels, No. 2:21-cv- 19} |}01566-CDS-VCF, 2023 U.S. Dist. LEXIS 164172, at *6 (D. Nev. Sep. 14, 2023) (quoting 20| |Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010)). Here, these factors 21) | weigh in favor of a finding of excusable neglect and granting a brief extension of the deadline 22) \to serve Defendants. 23 Here, there is very little danger of prejudice to Defendants, as little has occurred 24| |procedurally in this matter. Bonham, 2023 U.S. Dist. LEXIS 164172, at *6-7 (finding 25| |excusable neglect where “little has occurred procedurally, so that potential prejudice is not 26| |significant”). Indeed, discovery has recently begun in this matter. For similar reasons, the 27| \length of this delay in service—a mere seven days—would have little impact on judicial 28| |proceedings. Finally, Plaintiff is acting in good faith. Notably, the court “may extend time

1| |for service of process retroactively after the 90-day service period has expired.” Campbell v. 2| |Nev. Dep’t of Corr., No. 2:20-cv-00634-CDS-VCF, 2022 U.S. Dist. LEXIS 189929, at *3 3] |(D. Nev. Oct. 14, 2022) (citing Mann, 324 F.3d at 1090). 4 Finally, on March 13, 2024, Plaintiffs counsel spoke with Defendants’ counsel, 5| |Jackie Nichols, who indicated Defendants would not oppose the instant request, which 6| | further evidences a lack of prejudice. Plaintiff's counsel appreciates Defendants’ counsel’s 7| professional courtesy. 8 Therefore, Plaintiff respectfully moves for an extension of seven (7) days to 9| | effectuate service on Defendants. 10 DATED this 13" day of March, 2024. 1] 12 /s/ Leo S. Wolpert 26 13 MARGARET A. MCLETCHIE, Nevada Bar No. 10931 14 LEO S. WOLPERT, Nevada Bar No. 12658 602 South Tenth Street 15 Las Vegas, NV 89101 Telephone: (702) 728-5300; Fax: (702) 425-8220 16 Email: maggie@nvlitigation.com 7 Counsel for Plaintiff William Fleming 18 19 IT IS SO ORDERED. 20 21 22 U.S. MAGISTRATE(JUDGE 23 Dated: March 14, 2024 24 25 26 27 28