Graham v. Eisenloffel

Opinion

UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

4 Sankona Graham, 5 Case No. 2:21-cv-01674-RFB-MDC

6 Plaintiff(s), Order Regarding Service vs. 7 Theodore Eisenloffel, et al., 8 Defendant(s). 9

10 On March 26, 2024, pro se plaintiff Sankona Graham filed a Motion In Support Of His Motion 11 For Default Judgment (“Motion”) (ECF No. 171). A portion of Mr. Graham’s Motion addresses his 12 request for default judgment, which he previously and separately brought up before the Court on March 13 13, 2024 in his Motion For Default Judgment (ECF No. 165). The Court liberally construes the other 14 portion of Mr. Graham’s Motion as a request for service of process. The Court grants only the portion of 15 the motion that requests service of process. The Court denies the portion of Mr. Graham’s Motion 16 addressing his previous request for default judgment. The Court will consider Mr. Graham’s separate 17 Motion For Default (ECF No. 165) at a later date. The Court directs Mr. Graham to please follow an 18 orderly process and refrain from filing duplicative motions seeking the same relief. Filing duplicative 19 20 motions creates confusion and delays. 21 A. Background 22 Plaintiff argues in his Motion that the appearing counsel in this case agreed to work with plaintiff 23 to ensure service of the unserved defendants Kristen Cleveland and Raymond Huntley. ECF No. 171. 24 Appearing counsel apparently do not represent defendants Kristen Cleveland and Raymond Huntley 25 because they no longer work for Nye County. Id. Kristen Cleveland may now work for the Justice Court 1 and Raymond Huntley is retired. See ECF No. 81. 2 Since none of the appearing defendants responded to plaintiff’s Motion, and recognizing the 3 4 obstacles that incarcerated pro se plaintiff faces regarding service, the Court accepts plaintiff’s unrefuted 5 representation that appearing counsel agreed to help with service of process and now orders them to do 6 so. Per LR 7-2 (d), “[t]he failure of an opposing party to file points and authorities in response to any 7 motion, except a motion under Fed. R. Civ. P. 56 or a motion for attorney’s fees, constitutes a consent to 8 the granting of the motion. 9 IT IS SO ORDERED THAT: 10 1. Pro se plaintiff Sankona Graham’s Motion In Support Of His Motion For Default Judgment 11 (ECF No. 171) is GRANTED IN PART, as detailed in this order. 12 2. Appearing counsel at the law firms Erickson, Thorpe & Swainston, Ltd., and Hutchison & 13 Steffen, PLLC, must investigate the whereabouts of the unserved defendants Raymond 14 Huntley and Kristen Cleveland. 15 3. Appearing counsel must file a SEALED Joint Stipulation by Friday, May 24, 2024 which 16 17 includes the results of their investigations, such as: 18 a. Whether counsel was able to reach defendants Huntley and Cleveland; 19 b. Whether the unserved defendants are willing to waive service; and 20 c. What addresses the unserved defendants can be served at if they do not agree to waive. 21 4. If the unserved defendants do not waive service, the Court GRANTS plaintiff’s request for 22 service by the U.S. Marshals. 23 5. The Clerk of Court is directed to send copies of appearing counsel’s SEALED report to the 24 U.S. Marshals, for the purposes of determining if service is necessary and where the defendants 25 2 can be served. 1 6. The Clerk of Court is directed to issue reissue summons(es) for defendants Kristen Cleveland 2 and Raymond Huntley. Cleveland and Huntley’s addresses must remain SEALED. The Clerk 3 4 also will send sufficient copies of the Second Amended Complaint (ECF No. 70), the reissued 5 summons(es), and this order to the U.S. Marshal for service on defendants. 6 7. The Clerk of Court is directed is directed to mail to plaintiff appropriate copies of the USM- 7 285 form. 8 8. Plaintiff Graham MUST fill out and return new USM-285 forms for defendants Huntley and 9 Cleveland. Plaintiff has until Friday, May 24, 2024 to furnish to the U.S. Marshal the required 10 USM-285 form with any relevant information as to defendants. 11 9. Within twenty days after plaintiff receives copy of the completed USM-285 form from the 12 U.S. Marshal, plaintiff must file a notice with the court stating if the defendants were served. 13 NOTICE 14 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 15 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 16 17 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 18 may determine that an appeal has been waived due to the failure to file objections within the specified 19 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file objections 20 within the specified time and (2) failure to properly address and brief the objectionable issues waives the 21 right to appeal the District Court's order and/or appeal factual issues from the order of the District Court. 22 Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 23 454 (9th Cir. 1983). Pursuant to LR IA 3-1, the plaintiff must immediately file written notification with 24 the court of any change of address. The notification must include proof of service upon each opposing 25 3 party’s attorney, or upon the opposing party if the party is unrepresented by counsel. Failure to comply

5 with this rule may result in dismissal of the action.

3 Dated this 24th day of April 2024. Ko af 4 fos ff ff fo f 6 oF fim wig imilianofD. Couvillier II 7 United $tates Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25