2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Michael Foley, Case No. 2:20-cv-01874-ART-BNW 6 Plaintiff, 7 ORDER v. 8 Georgina Stuart, et al., 9 Defendants. 10 11 12 Before the Court is Plaintiff Michael Foley’s motion to extend the time for service of 13 process for Defendants Reese, Stuart, Rodriguez, and Flores. ECF No. 51. Plaintiff also seeks to 14 serve these Defendants by publication. Id. Defendant James Child opposes this request.1 ECF No. 15 57. 16 I. Background 17 Plaintiff attempted to serve Defendants Reese, Stuart, Rodriguez, and Flores on March 30, 18 2022 (within one month of this Court’s screening of Plaintiff’s complaint). ECF No. 10. 19 On April 13, 2022, these Defendants made a special appearance and moved to quash 20 service. ECF No. 12. On May 18, 2022, this Court granted the motion and instructed the Clark 21 County District Attorney’s Office to file under seal the last-known addresses for the Defendants 22 who were no longer employed with Clark County, as well as the name and address for the 23 designated person who could accept service on behalf of the Defendants who still worked for the 24 County. ECF No. 24 at 1-9. The deadline to comply with this Order was June 18, 2022. Id. The 25 Clark County District Attorney’s Office complied with that Order. ECF Nos. 27, 28. 26 27 1 The Court assumes Counsel for Defendant Childs is making a special appearance on behalf of 1 That same Order also required Plaintiff to file “USM-285 forms by June 18, 2022” with the 2 address line left blank. Id. at 2. Plaintiff did not comply with that Order.2 Because Plaintiff did not 3 file the requested USM-285 forms, this Court took no further action regarding service of process 4 for these defendants. In addition, on September 12, 2022, this Court issued an Order indicating an 5 intent to dismiss these defendants for Plaintiff’s failure to comply with service requirements. ECF 6 No. 42. 7 On October 11, 2022, Plaintiff filed the instant motion. ECF No. 51. 8 II. Enlarging the Time for Service 9 Rule 4 provides that plaintiff must serve defendant “within 90 days after the complaint is 10 filed.” FED. R. CIV. P. 4(m). Rule 4(m) requires a two-step analysis to determine whether to 11 extend the time for service. In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). At the first step, the 12 Court “must” extend the time for service “upon a showing of good cause.” Lemoge v. United 13 States, 587 F.3d 1188, 1198 (9th Cir. 2009). At the second step, the Court “may” extend the time 14 for service “upon a showing of excusable neglect.” In re Sheehan, 253 F.3d at 512. 15 Courts must determine on a case-by-case basis whether the serving party has shown good 16 cause. Id. Generally, good cause is equated with diligence, and it requires more than the mere 17 inadvertence of counsel. Townsel v. Contra Costa Cnty., Cal., 820 F.2d 319, 320 (9th Cir. 1987). 18 Here, the Court finds that Plaintiff has not established good cause, as he has not been 19 diligent. He has been on notice since May 18, 2022 that he needed to re-file the USM-285 forms 20 and leave the address line blank. He took no action and waited until October 11, 2022 to request 21 more time to serve. Therefore, the Court must determine whether Plaintiff has established 22 excusable neglect. 23 The Ninth Circuit has declined to articulate a specific test that a court must apply under 24 the discretionary component of Rule 4(m). In re Sheehan, 253 F.3d at 513. Instead, the Ninth 25
26 2 The USM-285 forms attached to Plaintiff’s instant motion are the forms that Plaintiff filed in compliance 27 with this Court’s February 28, 2022 Order. See ECF Nos. 5, 8. But on May 18, 2022, this Court granted Defendant’s motion to strike service on specific defendants and ordered Plaintiff to file new USM-285 1 Circuit has emphasized that the Court’s discretion at the second step is broad. Id. However, other 2 courts have allowed the following factors to guide their discretion under Rule 4(m): (1) the 3 danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on 4 judicial proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. 5 Trueman v. Johnson, 2011 WL 6721327, at *5 (D. Ariz. 2011). 6 First, the Court finds that there is little appreciable prejudice to defendants. This case is 7 still in its infancy, and this is Plaintiff’s first request for an extension. 8 The second factor likewise weighs in favor of an extension because the Court will only 9 grant an extension of 45 days. This is not a lengthy amount of time, and it is unlikely to have a 10 substantial impact on these proceedings. 11 The third factor weighs against an extension. The Court appreciates Plaintiff is appearing 12 pro se. Nevertheless, Plaintiff waited five months before seeking an extension and provided no 13 reason for the delay. 14 The fourth factor weighs in favor of an extension because the Court does not believe that 15 Plaintiff has moved in bad faith. 16 Based on these factors, the Court will exercise its discretion to extend the time for service 17 for an additional 45 days because, on balance, the Court believes that Plaintiff has established 18 excusable neglect. However, the Court warns that should Plaintiff need another extension, the 19 Court will accord particular significance to his actions in the time between today’s Order and any 20 subsequent motion. 21 III. Service of Process by Publication 22 The Constitution does not require any particular means of service of process. Rio Props., 23 Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1017 (9th Cir. 2002) (citing Mullane v. Central Hanover 24 Bank & Trust Co., 339 U.S. 306, 314 (1950)). Instead, it requires only that service “be reasonably 25 calculated to provide notice and an opportunity to respond.” Id. To that end, service of process is 26 governed by Rule 4 of the Federal Rules of Civil Procedure. 27 Rule 4(e) governs service of individuals located within a judicial district of the United 1 accordance with law of the state where the district court is located. Fed. R. Civ. P. 4(e)(1). This 2 Court is located in the District of Nevada. The Nevada Rules of Civil Procedure (“NRCP”), in 3 turn, allow for service by publication. NRCP 4.4(c). 4 A litigant who desires to effect service by publication must meet eight requirements. 5 NRCP 4.4(c).
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Michael Foley, Case No. 2:20-cv-01874-ART-BNW 6 Plaintiff, 7 ORDER v. 8 Georgina Stuart, et al., 9 Defendants. 10 11 12 Before the Court is Plaintiff Michael Foley’s motion to extend the time for service of 13 process for Defendants Reese, Stuart, Rodriguez, and Flores. ECF No. 51. Plaintiff also seeks to 14 serve these Defendants by publication. Id. Defendant James Child opposes this request.1 ECF No. 15 57. 16 I. Background 17 Plaintiff attempted to serve Defendants Reese, Stuart, Rodriguez, and Flores on March 30, 18 2022 (within one month of this Court’s screening of Plaintiff’s complaint). ECF No. 10. 19 On April 13, 2022, these Defendants made a special appearance and moved to quash 20 service. ECF No. 12. On May 18, 2022, this Court granted the motion and instructed the Clark 21 County District Attorney’s Office to file under seal the last-known addresses for the Defendants 22 who were no longer employed with Clark County, as well as the name and address for the 23 designated person who could accept service on behalf of the Defendants who still worked for the 24 County. ECF No. 24 at 1-9. The deadline to comply with this Order was June 18, 2022. Id. The 25 Clark County District Attorney’s Office complied with that Order. ECF Nos. 27, 28. 26 27 1 The Court assumes Counsel for Defendant Childs is making a special appearance on behalf of 1 That same Order also required Plaintiff to file “USM-285 forms by June 18, 2022” with the 2 address line left blank. Id. at 2. Plaintiff did not comply with that Order.2 Because Plaintiff did not 3 file the requested USM-285 forms, this Court took no further action regarding service of process 4 for these defendants. In addition, on September 12, 2022, this Court issued an Order indicating an 5 intent to dismiss these defendants for Plaintiff’s failure to comply with service requirements. ECF 6 No. 42. 7 On October 11, 2022, Plaintiff filed the instant motion. ECF No. 51. 8 II. Enlarging the Time for Service 9 Rule 4 provides that plaintiff must serve defendant “within 90 days after the complaint is 10 filed.” FED. R. CIV. P. 4(m). Rule 4(m) requires a two-step analysis to determine whether to 11 extend the time for service. In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). At the first step, the 12 Court “must” extend the time for service “upon a showing of good cause.” Lemoge v. United 13 States, 587 F.3d 1188, 1198 (9th Cir. 2009). At the second step, the Court “may” extend the time 14 for service “upon a showing of excusable neglect.” In re Sheehan, 253 F.3d at 512. 15 Courts must determine on a case-by-case basis whether the serving party has shown good 16 cause. Id. Generally, good cause is equated with diligence, and it requires more than the mere 17 inadvertence of counsel. Townsel v. Contra Costa Cnty., Cal., 820 F.2d 319, 320 (9th Cir. 1987). 18 Here, the Court finds that Plaintiff has not established good cause, as he has not been 19 diligent. He has been on notice since May 18, 2022 that he needed to re-file the USM-285 forms 20 and leave the address line blank. He took no action and waited until October 11, 2022 to request 21 more time to serve. Therefore, the Court must determine whether Plaintiff has established 22 excusable neglect. 23 The Ninth Circuit has declined to articulate a specific test that a court must apply under 24 the discretionary component of Rule 4(m). In re Sheehan, 253 F.3d at 513. Instead, the Ninth 25
26 2 The USM-285 forms attached to Plaintiff’s instant motion are the forms that Plaintiff filed in compliance 27 with this Court’s February 28, 2022 Order. See ECF Nos. 5, 8. But on May 18, 2022, this Court granted Defendant’s motion to strike service on specific defendants and ordered Plaintiff to file new USM-285 1 Circuit has emphasized that the Court’s discretion at the second step is broad. Id. However, other 2 courts have allowed the following factors to guide their discretion under Rule 4(m): (1) the 3 danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on 4 judicial proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. 5 Trueman v. Johnson, 2011 WL 6721327, at *5 (D. Ariz. 2011). 6 First, the Court finds that there is little appreciable prejudice to defendants. This case is 7 still in its infancy, and this is Plaintiff’s first request for an extension. 8 The second factor likewise weighs in favor of an extension because the Court will only 9 grant an extension of 45 days. This is not a lengthy amount of time, and it is unlikely to have a 10 substantial impact on these proceedings. 11 The third factor weighs against an extension. The Court appreciates Plaintiff is appearing 12 pro se. Nevertheless, Plaintiff waited five months before seeking an extension and provided no 13 reason for the delay. 14 The fourth factor weighs in favor of an extension because the Court does not believe that 15 Plaintiff has moved in bad faith. 16 Based on these factors, the Court will exercise its discretion to extend the time for service 17 for an additional 45 days because, on balance, the Court believes that Plaintiff has established 18 excusable neglect. However, the Court warns that should Plaintiff need another extension, the 19 Court will accord particular significance to his actions in the time between today’s Order and any 20 subsequent motion. 21 III. Service of Process by Publication 22 The Constitution does not require any particular means of service of process. Rio Props., 23 Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1017 (9th Cir. 2002) (citing Mullane v. Central Hanover 24 Bank & Trust Co., 339 U.S. 306, 314 (1950)). Instead, it requires only that service “be reasonably 25 calculated to provide notice and an opportunity to respond.” Id. To that end, service of process is 26 governed by Rule 4 of the Federal Rules of Civil Procedure. 27 Rule 4(e) governs service of individuals located within a judicial district of the United 1 accordance with law of the state where the district court is located. Fed. R. Civ. P. 4(e)(1). This 2 Court is located in the District of Nevada. The Nevada Rules of Civil Procedure (“NRCP”), in 3 turn, allow for service by publication. NRCP 4.4(c). 4 A litigant who desires to effect service by publication must meet eight requirements. 5 NRCP 4.4(c). The litigant must (1) establish that “the service methods provided in [NRCP] 4.2, 6 4.3, and 4.4(a) and (b) are impracticable”; (2) demonstrate that the defendant cannot, after due 7 diligence, be found, or that the defendant seeks to avoid service of process through concealment; 8 (3) establish through pleadings or other evidence that a cause of action exists against the 9 defendant; (4) demonstrate that the defendant is a necessary or proper party to the action; (5) set 10 forth specific facts demonstrating the efforts plaintiff made to locate and serve the defendant; 11 (6) provide the proposed language of the summons to be used in the publication, briefly 12 summarizing the claims asserted and the relief sought; (7) suggest one or more newspapers in 13 which the summons should be published that are reasonably calculated to give the defendant 14 actual notice; and (8) provide the defendant’s last-known address, the dates during which 15 defendant lived at that address, and confirmation that plaintiff is unaware of any other address at 16 which defendant has resided since that time or at which defendant can be found. NRCP 4.4(c). 17 Plaintiff fails to establish any of these requirements. Thus, Plaintiff has not made the 18 requisite showing under NRCP 4.4(c)—and, by extension, Federal Rule 4(e)(1)—to effect service 19 of process upon Defendants Reese, Stuart, Rodriguez, and Flores by publication. 20 The Court notes again that the Clark County District Attorney has filed information under 21 seal with the name of the person authorized to accept service on behalf of these defendants and 22 the address where the summonses must be served. ECF Nos. 27, 28. As a result, all that Plaintiff 23 must do is file (by January 5, 2023) the USM-285 forms for each of these Defendants and leave 24 the address line blank. Once those forms are filed, this Court will direct the Marshals to effectuate 25 service of process on Reese, Stuart, Rodriguez, and Flores. 26 IV. Conclusion. 27 IT IS THEREFORE ORDERED that Plaintiff’s motion to extend time and for service by 1 has 45 days from the date of this Order to serve Defendants Reese, Stuart, Rodrigues, and Flores. 2 It is denied to the extent that the Court will not allow service of process by publication. 3 IT IS FURTHER ORDERED that Plaintiff must file USM-285 forms for each of these 4 defendants with the address left blank by January 5, 2023. Once those forms are filed, the Court 5 will direct the U.S. Marshals Service to serve these defendants at the addresses that the Clark 6 County District Attorney filed under seal. 7 DATED: December 27, 2022. 8 BRENDA WEKSLER 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27