1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Carlos Hernandez, No. CV-20-00349-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 Scottsdale Hotel Group LLC, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff’s motion for extension of time. (Doc. 14.) For 16 the following reasons, the motion will be granted. 17 BACKGROUND 18 On February 17, 2020, Plaintiff initiated this action. (Doc. 1.) Pursuant to Rule 19 4(m) of the Federal Rules of Civil Procedure, the deadline to serve Defendants was May 20 18, 2020. The Court issued its standard preliminary order, which ordered the Clerk of 21 Court to terminate any Defendant not served by that date. (Doc. 6 at 5.) 22 On March 24, 2020, Defendant Anne Schwanz filed a motion for extension of time 23 to respond to the complaint. (Doc. 7.) The motion was granted and the deadline extended 24 to April 14, 2020 (Doc. 8), on which date Schwanz filed a motion to dismiss for failure to 25 state a claim (Doc. 9). 26 On June 1, 2020, the Clerk of Court terminated Defendant Scottsdale Hotel Group 27 LLC (“the Scott”) for failure to timely serve process, pursuant to the Court’s preliminary 28 order. (Doc. 12.) 1 That same day, Plaintiff filed a motion for extension of time to serve process on the 2 Scott. (Doc. 14.) The two-page motion contains two back-to-back contradictory 3 statements: (1) “Plaintiff did serve the Scott within the prescribed time frame issued by the 4 court but inadvertently failed to file his return of service with the Court which may be 5 excused as excusable neglect” (id. ¶ 2) and (2) “Plaintiff’s process server never served the 6 Scott as requested. Plaintiff did not catch this oversight until the Court’s minute order” 7 (id. ¶ 3.) Plaintiff attached an email from Plaintiff’s counsel to a process server, dated 8 February 21, 2020, with the subject line “Please serve Hernandez v. Scott Hotel Group, 9 LLC,” the body text “Please serve,” and six PDF attachments that appear from the 10 document names to be the appropriate materials for service of process. (Doc. 14-1.) 11 On June 5, 2020, Defendants filed a response to Plaintiff’s motion for extension of 12 time to serve. (Doc. 16.) Defendants point out the contradictory assertions in Plaintiff’s 13 motion, noted above, and further state that Defendant Schwanz’s counsel notified 14 Plaintiff’s counsel in March 2020 that the Scott hadn’t been served:
15 After Plaintiff served Ms. Schwanz with the summons and complaint in March 2020, her counsel sent Plaintiff’s counsel an email on March 24, 2020 16 requesting a short extension to file Ms. Schwanz’s responsive pleading, which also specifically noted: “I don’t believe The Scott has been served 17 yet.” Plaintiff’s counsel agreed to the extension, but did not respond to the service issue or claim that The Scott had been served. 18 19 (Id. at 2.) 20 Plaintiff did not file a reply. 21 On June 17, 2020, the Court ordered Plaintiff to file a reply. (Doc. 17.) 22 On June 22, 2020, Plaintiff filed a reply. (Doc. 18.) 23 ANALYSIS 24 “Rule 4(m) provides two avenues for relief. The first is mandatory: the district court 25 must extend time for service upon a showing of good cause.” Lemoge v. United States, 26 587 F.3d 1188, 1198 (9th Cir. 2009). “[A]n attorney’s inadvertence does not qualify as 27 good cause under Federal Rule of Civil Procedure 4(j) for failure to comply with the 28 requirements for service of process.” Kyle v. Campbell Soup Co., 28 F.3d 928, 931 (9th 1 Cir. 1994), as amended on denial of reh’g (Apr. 8, 1994). There has been no showing of 2 good cause here. 3 The second avenue for relief is “discretionary.” Lemoge, 587 F.3d at 1198. “[I]f 4 good cause is not established, the district court may extend time for service upon a showing 5 of excusable neglect.” Id. 6 Courts assessing whether neglect is “excusable” must consider four factors: “[1] 7 the danger of prejudice to the [non-moving party], [2] the length of the delay and its 8 potential impact on judicial proceedings, [3] the reason for the delay, including whether it 9 was within the reasonable control of the movant, and [4] whether the movant acted in good 10 faith.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 365 (1993). 11 Additionally, where a motion “(1) seeks to set aside a dismissal that arises from 12 noncompliance with Rule 4(m), (2) the movants cannot re-file their action because the 13 statute of limitations has run, and (3) there is no or only slight prejudice to the opposing 14 party if relief is granted, the district court should consider, and give appropriate weight to, 15 the movants’ prejudice if relief is denied.” Lemoge, 587 F.3d at 1195. 16 Excusable neglect is not a terribly exacting standard, and it can “encompass 17 situations in which the failure to comply with a filing deadline is attributable to 18 negligence.” Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997). 19 Pursuant to Rule 4(l)(1), an attorney should procure written documentation of service and 20 then file the proof of service with the Court. Plaintiff’s counsel’s failure to do this—or 21 even to notice that service was not accomplished—coupled with her failure to remedy the 22 lack of service when opposing counsel pointed it out in the March email, stretches the 23 boundaries of neglect that can be termed “excusable.” Moreover, Plaintiff initially passed 24 on the opportunity to file a reply brief, in which Plaintiff might have clarified the 25 contradictory statements in his motion and provided more insight as to how or why Plaintiff 26 remained ignorant of the failure to serve, even after opposing counsel mentioned it in the 27 March email. And then, after the Court ordered Plaintiff to file a reply, Plaintiff’s reply, 28 which was four paragraphs in length, failed to address two of the issues the Court ordered 1 Plaintiff to address—“the reason Plaintiff’s counsel did not rectify the lack of service after 2 opposing counsel pointed it out” and “the reason the motion asserts that ‘Plaintiff did serve 3 the Scott within the prescribed time frame’ (Doc. 14 ¶ 2), which does not appear to be true 4 and is contradicted by the assertion that ‘Plaintiff’s process server never served the Scott 5 as requested.’” (Doc. 17.) 6 Plaintiff did, however, assert that “the current pandemic played a role in Plaintiff’s 7 counsel’s failure to serve,” as “Plaintiff’s counsel’s office closed and had to be moved,” 8 and Plaintiff’s counsel “laid off her assistant,” who as since “been called back to work.” 9 (Doc. 18 at 2.) Plaintiff further asserts that he “would [be] extremely prejudiced” if the 10 action were dismissed without prejudice, as his Title VII claims “would be lost.” (Id.) 11 This is a close call. The pandemic has caused great disruption across the globe, and 12 it’s understandable that in the tumult of Plaintiff’s counsel closing and moving her office 13 and laying off and then rehiring her assistant, she failed to follow up on her instruction to 14 the process server to serve the Scott and forgot to take the step of filing proof of service (at 15 which point, she would have noticed the omission). It’s somewhat less understandable that 16 Plaintiff’s counsel did not notice the error when it was pointed out by opposing counsel.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Carlos Hernandez, No. CV-20-00349-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 Scottsdale Hotel Group LLC, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff’s motion for extension of time. (Doc. 14.) For 16 the following reasons, the motion will be granted. 17 BACKGROUND 18 On February 17, 2020, Plaintiff initiated this action. (Doc. 1.) Pursuant to Rule 19 4(m) of the Federal Rules of Civil Procedure, the deadline to serve Defendants was May 20 18, 2020. The Court issued its standard preliminary order, which ordered the Clerk of 21 Court to terminate any Defendant not served by that date. (Doc. 6 at 5.) 22 On March 24, 2020, Defendant Anne Schwanz filed a motion for extension of time 23 to respond to the complaint. (Doc. 7.) The motion was granted and the deadline extended 24 to April 14, 2020 (Doc. 8), on which date Schwanz filed a motion to dismiss for failure to 25 state a claim (Doc. 9). 26 On June 1, 2020, the Clerk of Court terminated Defendant Scottsdale Hotel Group 27 LLC (“the Scott”) for failure to timely serve process, pursuant to the Court’s preliminary 28 order. (Doc. 12.) 1 That same day, Plaintiff filed a motion for extension of time to serve process on the 2 Scott. (Doc. 14.) The two-page motion contains two back-to-back contradictory 3 statements: (1) “Plaintiff did serve the Scott within the prescribed time frame issued by the 4 court but inadvertently failed to file his return of service with the Court which may be 5 excused as excusable neglect” (id. ¶ 2) and (2) “Plaintiff’s process server never served the 6 Scott as requested. Plaintiff did not catch this oversight until the Court’s minute order” 7 (id. ¶ 3.) Plaintiff attached an email from Plaintiff’s counsel to a process server, dated 8 February 21, 2020, with the subject line “Please serve Hernandez v. Scott Hotel Group, 9 LLC,” the body text “Please serve,” and six PDF attachments that appear from the 10 document names to be the appropriate materials for service of process. (Doc. 14-1.) 11 On June 5, 2020, Defendants filed a response to Plaintiff’s motion for extension of 12 time to serve. (Doc. 16.) Defendants point out the contradictory assertions in Plaintiff’s 13 motion, noted above, and further state that Defendant Schwanz’s counsel notified 14 Plaintiff’s counsel in March 2020 that the Scott hadn’t been served:
15 After Plaintiff served Ms. Schwanz with the summons and complaint in March 2020, her counsel sent Plaintiff’s counsel an email on March 24, 2020 16 requesting a short extension to file Ms. Schwanz’s responsive pleading, which also specifically noted: “I don’t believe The Scott has been served 17 yet.” Plaintiff’s counsel agreed to the extension, but did not respond to the service issue or claim that The Scott had been served. 18 19 (Id. at 2.) 20 Plaintiff did not file a reply. 21 On June 17, 2020, the Court ordered Plaintiff to file a reply. (Doc. 17.) 22 On June 22, 2020, Plaintiff filed a reply. (Doc. 18.) 23 ANALYSIS 24 “Rule 4(m) provides two avenues for relief. The first is mandatory: the district court 25 must extend time for service upon a showing of good cause.” Lemoge v. United States, 26 587 F.3d 1188, 1198 (9th Cir. 2009). “[A]n attorney’s inadvertence does not qualify as 27 good cause under Federal Rule of Civil Procedure 4(j) for failure to comply with the 28 requirements for service of process.” Kyle v. Campbell Soup Co., 28 F.3d 928, 931 (9th 1 Cir. 1994), as amended on denial of reh’g (Apr. 8, 1994). There has been no showing of 2 good cause here. 3 The second avenue for relief is “discretionary.” Lemoge, 587 F.3d at 1198. “[I]f 4 good cause is not established, the district court may extend time for service upon a showing 5 of excusable neglect.” Id. 6 Courts assessing whether neglect is “excusable” must consider four factors: “[1] 7 the danger of prejudice to the [non-moving party], [2] the length of the delay and its 8 potential impact on judicial proceedings, [3] the reason for the delay, including whether it 9 was within the reasonable control of the movant, and [4] whether the movant acted in good 10 faith.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 365 (1993). 11 Additionally, where a motion “(1) seeks to set aside a dismissal that arises from 12 noncompliance with Rule 4(m), (2) the movants cannot re-file their action because the 13 statute of limitations has run, and (3) there is no or only slight prejudice to the opposing 14 party if relief is granted, the district court should consider, and give appropriate weight to, 15 the movants’ prejudice if relief is denied.” Lemoge, 587 F.3d at 1195. 16 Excusable neglect is not a terribly exacting standard, and it can “encompass 17 situations in which the failure to comply with a filing deadline is attributable to 18 negligence.” Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997). 19 Pursuant to Rule 4(l)(1), an attorney should procure written documentation of service and 20 then file the proof of service with the Court. Plaintiff’s counsel’s failure to do this—or 21 even to notice that service was not accomplished—coupled with her failure to remedy the 22 lack of service when opposing counsel pointed it out in the March email, stretches the 23 boundaries of neglect that can be termed “excusable.” Moreover, Plaintiff initially passed 24 on the opportunity to file a reply brief, in which Plaintiff might have clarified the 25 contradictory statements in his motion and provided more insight as to how or why Plaintiff 26 remained ignorant of the failure to serve, even after opposing counsel mentioned it in the 27 March email. And then, after the Court ordered Plaintiff to file a reply, Plaintiff’s reply, 28 which was four paragraphs in length, failed to address two of the issues the Court ordered 1 Plaintiff to address—“the reason Plaintiff’s counsel did not rectify the lack of service after 2 opposing counsel pointed it out” and “the reason the motion asserts that ‘Plaintiff did serve 3 the Scott within the prescribed time frame’ (Doc. 14 ¶ 2), which does not appear to be true 4 and is contradicted by the assertion that ‘Plaintiff’s process server never served the Scott 5 as requested.’” (Doc. 17.) 6 Plaintiff did, however, assert that “the current pandemic played a role in Plaintiff’s 7 counsel’s failure to serve,” as “Plaintiff’s counsel’s office closed and had to be moved,” 8 and Plaintiff’s counsel “laid off her assistant,” who as since “been called back to work.” 9 (Doc. 18 at 2.) Plaintiff further asserts that he “would [be] extremely prejudiced” if the 10 action were dismissed without prejudice, as his Title VII claims “would be lost.” (Id.) 11 This is a close call. The pandemic has caused great disruption across the globe, and 12 it’s understandable that in the tumult of Plaintiff’s counsel closing and moving her office 13 and laying off and then rehiring her assistant, she failed to follow up on her instruction to 14 the process server to serve the Scott and forgot to take the step of filing proof of service (at 15 which point, she would have noticed the omission). It’s somewhat less understandable that 16 Plaintiff’s counsel did not notice the error when it was pointed out by opposing counsel. 17 And Plaintiff has made no effort to explain the contradictory statements in his motion. 18 Although the contradiction in the motion is more likely attributable to hasty and careless 19 drafting than a bad faith motive, Plaintiff’s failure to clear the air leaves the Court with 20 little to go on. And the reply ordered by the Court disregards part of the Court’s order. 21 On the other hand, the delay was not lengthy, prejudice to the opposing party is 22 minimal, and prejudice to Plaintiff if the action were dismissed is great. Plaintiff filed 23 proof that service on the Scott was effected on June 2, 2020—a mere 15 days after the 24 service deadline. (Doc. 15.) While Plaintiff’s counsel’s failures stretch the boundary of 25 what could be deemed excusable neglect, the pandemic is an unusually disruptive 26 circumstance that warrants leniency. 27 “[T]he determination is at bottom an equitable one, taking account of all relevant 28 circumstances surrounding the party’s omission.” Briones, 116 F.3d at 381. Under the 1 || circumstances, the Court will grant relief. 2 Accordingly, 3 IT IS ORDERED that Plaintiffs motion for extension of time (Doc. 14) is granted. 4|| Service of the Scott is deemed effective. 5 IT IS FURTHER ORDERED that the Clerk of Court reinstate the Scott || (Scottsdale Hotel Group LLC). The June 1, 2020 order terminating the Scott (Doc. 12) is vacated. 8 Dated this 23rd day of June, 2020. 9 10 Lm ee” ul f t _o—— Dominic W, Lanza 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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