Holiwell v. Higgins

Opinion

5 UNITED STATES DISTRICT COURT 6 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7

8 ALICIA SANCHEZ HOLIWELL, CASE NO. 2:24-cv-00720-RSL 9 Plaintiff, v. 10 ORDER GRANTING MOTION TO DISMISS (DKT. # 73) 11 ANDY CHARLES HIGGINS, et al.,

12 Defendants. 13

14 This matter comes before the Court on “Defendants Washington State Human 15 Rights Commission, Employment Security Department, Alice Dinerman, and Sheena 16 Christman’s Motion To Dismiss or, in the Alternative, Quash Service of Summons 17 18 Pursuant to FRCP 4(m) and 12(b)(5).” Dkt. # 73. Despite the specific reference to Rule 19 12(b)(5) in the title of the motion, the moving defendants also seek dismissal for failure to 20 state a claim upon which relief can be granted under Rule 12(b)(6) and on Eleventh 21 Amendment immunity grounds under Rule 12(b)(1). The motion is unopposed. 22 23 24 Having reviewed plaintiff’s fourth amended complaint (Dkt. # 12) and the 25 remainder of the record, the Court finds as follows: 26 ORDER GRANTING MOTION TO DISMISS (DKT. # 73) - 1 1 There is no evidence that plaintiff attempted to serve the Washington State Human 2 Rights Commission, the Employment Security Department, or Sheena Christman or that 3 defendant Alice Dinerman was properly served with the summons and complaint. In an 4 5 order dated December 9, 2024, the Court discussed the requirements of Rule 4, pointing 6 out the jurisdictional nature of service and the insufficiency of service by email on an 7 individual. Dkt. # 66. In the context of that order, the record showed that plaintiff 8 understood that waivers of service could be requested and that proof of service was 9 10 necessary. This motion was filed a month after the Court issued its first service order, and 11 yet plaintiff has not taken any steps to remedy the service defects or file proofs of service. 12 Pursuant to Rule 4(m), “[i]f a defendant is not served within 90 days after the 13 complaint is filed, the court—on motion or on its own after notice to the plaintiff—must 14 15 dismiss the action without prejudice against that defendant or order that service be made 16 within a specified time.” The fourth amended complaint, which added the last of the 17 moving defendants to this litigation, was filed more than six months ago. Plaintiff has not 18 shown good cause for her failure to timely serve, so the Court must determine whether to 19 exercise its discretion to grant an extension of the service period. “In making extension 20 21 decisions under Rule 4(m) a district court may consider factors ‘like a statute of limitations 22 bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.’” Efaw v. 23 Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (quoting Troxell v. Fedders of N. Am., Inc., 24 160 F.3d 381, 383 (7th Cir. 1998)). Having considered those factors, the length of the 25 26 delay, plaintiff’s minimal efforts to achieve service, her lack of remedial efforts following ORDER GRANTING MOTION TO DISMISS (DKT. # 73) - 2 1 the Court’s December 9th order, and her failure to respond to the motion to dismiss, the 2 Court finds that an extension of time is not appropriate. 3

4 5 The motion to dismiss (Dkt. # 73) is GRANTED for insufficient service of process. 6 Because dismissal is warranted under Rule 4(m) and Rule 12(b)(5), the Court need not 7 consider the moving defendants’ Rule 12(b)(1) or (6) arguments. 8

9 10 Dated this 25th day of February, 2025.

11 12 Robert S. Lasnik United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER GRANTING MOTION TO DISMISS (DKT. # 73) - 3