Grant v. Phoenix, City of

• Court: District Court, D. Arizona
• Decided: December 2, 2021
• Docket: 2:21-cv-00950
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Chandler Grant, No. CV-21-00950-PHX-DWL (ESW)

10 Plaintiff, REPORT AND RECOMMENDATION 11 v.

12 City of Phoenix, et al.,

13 Defendants. 14 15 TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT 16 JUDGE: 17 On June 1, 2021, with the assistance of counsel, Plaintiff filed a civil rights 18 Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). On June 15, 2021, the Court ordered 19 Plaintiff to complete service of the Summons and Complaint on all Defendants within 90 20 days of the filing of the Complaint or 60 days of the filing of the Court’s Order, whichever 21 is later (Doc. 3 at 1). On September 16, 2021, the Court granted counsel’s Motion to 22 Withdraw as Counsel of Record (Doc. 5) and extended the time for service of process to 23 October 29, 2021 (Doc. 6). Plaintiff failed to file proof of service of process. 24 On November 11, 2021, the Court ordered Plaintiff to either (i) file affidavits of 25 service of process for all named Defendants or (ii) show cause why the Complaint should 26 not be dismissed without prejudice for failure to timely serve pursuant to Fed. R. Civ. P. 27 4(m) no later than November 16, 2021 (Doc. 7). No response to the Court’s Order (Doc. 28 7) has been filed, and the time to respond has passed. The Court presumes the Plaintiff 1 received the Court’s Order because it was not returned undeliverable. The Court will 2 recommend that all claims regarding all Defendants be dismissed without prejudice. 3 I. DISCUSSION 4 Under Fed. R. Civ. P. 4(m), “[i]f a defendant is not served within 90 days after the 5 complaint is filed, the court – on motion or on its own after notice to the plaintiff – must 6 dismiss the action without prejudice against that defendant or order that service be made 7 within a specified time.” However, “if the plaintiff shows good cause for the failure, the 8 court must extend the time for service for an appropriate period.” Id. As the Ninth Circuit 9 Court of Appeals has explained, “Rule 4(m) requires a twostep analysis in deciding 10 whether or not to extend the prescribed time period for the service of a complaint.” In re 11 Sheehan, 253 F.3d 507, 512 (9th Cir. 2001) (citing Fed. R. Civ. P. 4(m) and Petrucelli v. 12 Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1305 (3d Cir. 1995)). “First, upon a showing 13 of good cause for the defective service, the court must extend the time period. Second, if 14 there is no good cause, the court has the discretion to dismiss without prejudice or to extend 15 the time period.” Id. The Ninth Circuit has found it “unnecessary, however, to articulate 16 a specific test that a court must apply in exercising its discretion under Rule 4(m),” noting 17 “only that, under the terms of the rule, the court's discretion is broad.” Id. at 513. Yet “no 18 court has ruled that the discretion is limitless. In making extension decisions under Rule 19 4(m) a district court may consider factors ‘like a statute of limitations bar, prejudice to the 20 defendant, actual notice of a lawsuit, and eventual service.’” Efaw v. Williams, 473 F.3d 21 1038, 1041 (9th Cir. 2007) (emphasis added). 22 In this case, the Court gave the Plaintiff the opportunity to show good cause why 23 Defendants should not be dismissed from the lawsuit for failure to timely serve. The 24 Plaintiff did not respond to the Court’s Order. Nor did the Plaintiff request additional time 25 to serve Defendants. It is not the Court’s role to assist in obtaining Defendants’ addresses. 26 See Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007) (“A district court lacks the 27 power to act as a party’s lawyer, even for pro se litigants.”); Pliler v. Ford, 542 U.S. 225, 28 231 (2004) (federal “judges have no obligation to act as counsel or paralegal to pro se 1 || litigants”) (italics in original); Barnes v. United States, 241 F.2d 252 (9th Cir. 1956) (noting 2|| pro se litigant does not have rights that a represented litigant does not have). Dismissal 3 || without prejudice is appropriate under these circumstances. The undersigned recommends 4|| that the Court dismiss Plaintiff's Complaint as to all Defendants without prejudice for 5 || failure to timely serve pursuant to Fed. R. Civ. P. 4(m). 6 Il. CONCLUSION 7 Based on the foregoing, 8 IT IS RECOMMENDED that the Court dismiss without prejudice Plaintiff's || Complaint (Doc. 1) for failure to serve Defendants pursuant to Fed. R. Civ. P. 4(m). 10 This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court’s judgment. The parties shall 13 || have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. 15 || P.6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge’s Report and 17 || Recommendation may result in the acceptance of the Report and Recommendation by the 18 || District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party’s right to 20 || appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s recommendation. See United States v.Reyna-Tapia, 328 F.3d 1114, 1121 (th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). 23 Dated this 2nd day of December, 2021. 24 Cay) dot 26 Honorable Eileen S. Willett 7 United States Magistrate Judge 28

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