Juarez v. WALMART INC

D. Nevada

Juarez v. WALMART INC

DecidedJune 2, 2023

Docket3:21-cv-00525

StatusUnknown

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Juarez v. WALMART INC, (D. Nev. 2023).

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3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 VICTOR CAMARGO JUAREZ, Case No. 3:21-cv-00525-MMD-CSD

7 Plaintiff, ORDER v. 8 WALMART, INC., 9 Defendant. 10 11 Pro se Plaintiff Victor Camargo Juarez filed the Complaint in this action on 12 December 30, 2021. (ECF No. 1-1.) However, a year and a half later, Plaintiff has failed 13 to properly serve the sole Defendant in this case, Walmart, Inc., and has failed to comply 14 with the Court’s prior orders directing Plaintiff to submit a revised USM-285 form or 15 complete service on an appropriate Walmart agent. (ECF Nos. 17, 18.) For these 16 reasons, and the reasons discussed below, the Court will dismiss this action without 17 prejudice. 18 Plaintiff was allowed to proceed in forma pauperis and initially submitted an USM- 19 285 form that listed “Walmart” on Kietzke Lane as the entity for service. (ECF Nos. 3, 9.) 20 The general manager of the Walmart store was served by the U.S. Marshal on January 21 24, 2022. (ECF No. 9.) However, Nevada does not allow for service on general or mid- 22 level management and requires service on “the president, board chairman, and other 23 ‘superior officers’” of the corporation. See Mich. Geosearch, Inc. v. Prosperity 24 Bancshares, Inc., 130 Nev. 1217 (2014); see also Saavedra-Sandoval v. Wal-Mart 25 Stores, 245 P.3d 1198, 1201 (Nev. 2010). Although Fed. R. Civ. P. 4(h) permits service 26 on a corporation by delivering a copy of the summons and complaint to an officer and 27 managing or general agent of the corporation, federal courts “view managing agents 28 and/or general managers as employees who have some substantial authority within a 2 does not suffice for service. See Schmalle v. Prudhomme, Case No. 18-cv-02469 W 3 (MDD), 2019 WL 3997333, at * 3 (S.D. Cal. Aug. 23, 2019) (citing Garabedian v. Griffin 4 Steel & Supply Co., 340 F.2d 478, 479 (9th Cir. 1965); Bridgeport Music, Inc. v. Rhyme 5 Syndicate Music, 376 F.3d 615, 624 (6th Cir. 2004); Aussieker v. M&S Green-Power 6 Energy, Inc., Case No. 2:18-cv-03234-JAM-AC, 2019 WL 2183783, at *3 (E.D. Cal. May 7 21, 2019)). 8 Since service was insufficient, the Court issued a minute order on April 10, 2023, 9 directing Plaintiff to submit a revised USM-285 service form that identified the proper party 10 for service by May 10, 2023.1 (ECF No. 17.) The Court also pointed Plaintiff to the Nevada 11 Secretary of State’s website to find Walmart’s registered agent in Nevada and the Clerk 12 of Court sent Plaintiff another USM-285 form. (Id.) When Plaintiff failed to submit a revised 13 form by that deadline, the Court issued another minute order on May 12, 2023, cautioning 14 Plaintiff to submit the revised USM-285 form or complete service on an appropriate 15 Walmart agent by May 29, 2023, or face dismissal of his case for insufficient service. 16 (ECF No. 18.) See Fed. R. Civ. P. 4(m); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 17 Cir. 1986). To date, no proof of service or revised USM-285 form has been filed. 18 District courts have the inherent power to control their dockets and “[i]n the 19 exercise of that power, they may impose sanctions including, where appropriate . . . 20 dismissal” of a case. Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 21 1986). A court may dismiss an action based on a party’s failure to obey a court order or 22 comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 23 (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to keep 24 court apprised of address); Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) 25 (dismissal for failure to comply with court order). In determining whether to dismiss an 26 action on one of these grounds, the Court must consider: (1) the public’s interest in the 27

1The Court previously set aside the Clerk’s entry of default as to Walmart, Inc., 28 which was entered in error, because service was insufficient in this case. (ECF Nos. 16, 2 of prejudice to Defendant; (4) the public policy favoring disposition of cases on their 3 merits; and (5) the availability of less drastic alternatives. See In re Phenylpropanolamine 4 Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone, 833 F.2d at 130). 5 The first two factors, the public’s interest in expeditiously resolving this litigation 6 and the Court’s interest in managing its docket, weigh in favor of dismissal. The third 7 factor, risk of prejudice to Defendant, also weighs in favor of dismissal because a 8 presumption of injury arises from the occurrence of unreasonable delay in filing a pleading 9 ordered by the court or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 10 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of cases on 11 their merits—is greatly outweighed by the factors favoring dismissal. 12 The fifth factor requires the Court to consider whether less drastic alternatives can 13 be used to correct the party’s failure that brought about the Court’s need to consider 14 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 15 that considering less drastic alternatives before the party has disobeyed a court order 16 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 17 Cir. 2002). Courts “need not exhaust every sanction short of dismissal before finally 18 dismissing a case, but must explore possible and meaningful alternatives.” Henderson, 19 779 F.2d at 1424. Because this action cannot realistically proceed until and unless 20 Plaintiff properly serves the sole Defendant in this case, the only alternative is to enter a 21 third order setting another deadline for service. But the reality of repeating ignored orders 22 is that it often only delays the inevitable and squanders the Court’s finite resources. The 23 circumstances here do not indicate that this case will be an exception because there is 24 no showing that Plaintiff needs additional time or evidence that he did not receive the 25 Court’s prior orders. Setting a third deadline is not a meaningful alternative in these 26 circumstances. Thus, the fifth factor also favors dismissal. 27 Having thoroughly considered these dismissal factors, the Court finds that they 28 weigh in favor of dismissal. 1 It is therefore ordered that this action is dismissed without prejudice based on 2 || Plaintiffs failure to properly serve Defendant Walmart, Inc., in compliance with the Court’s 3 || April 10, 2023, and May 12, 2023, orders. 4 The Clerk of Court is directed to enter judgment accordingly and close this case.

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3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 VICTOR CAMARGO JUAREZ, Case No. 3:21-cv-00525-MMD-CSD

7 Plaintiff, ORDER v. 8 WALMART, INC., 9 Defendant. 10 11 Pro se Plaintiff Victor Camargo Juarez filed the Complaint in this action on 12 December 30, 2021. (ECF No. 1-1.) However, a year and a half later, Plaintiff has failed 13 to properly serve the sole Defendant in this case, Walmart, Inc., and has failed to comply 14 with the Court’s prior orders directing Plaintiff to submit a revised USM-285 form or 15 complete service on an appropriate Walmart agent. (ECF Nos. 17, 18.) For these 16 reasons, and the reasons discussed below, the Court will dismiss this action without 17 prejudice. 18 Plaintiff was allowed to proceed in forma pauperis and initially submitted an USM- 19 285 form that listed “Walmart” on Kietzke Lane as the entity for service. (ECF Nos. 3, 9.) 20 The general manager of the Walmart store was served by the U.S. Marshal on January 21 24, 2022. (ECF No. 9.) However, Nevada does not allow for service on general or mid- 22 level management and requires service on “the president, board chairman, and other 23 ‘superior officers’” of the corporation. See Mich. Geosearch, Inc. v. Prosperity 24 Bancshares, Inc., 130 Nev. 1217 (2014); see also Saavedra-Sandoval v. Wal-Mart 25 Stores, 245 P.3d 1198, 1201 (Nev. 2010). Although Fed. R. Civ. P. 4(h) permits service 26 on a corporation by delivering a copy of the summons and complaint to an officer and 27 managing or general agent of the corporation, federal courts “view managing agents 28 and/or general managers as employees who have some substantial authority within a 2 does not suffice for service. See Schmalle v. Prudhomme, Case No. 18-cv-02469 W 3 (MDD), 2019 WL 3997333, at * 3 (S.D. Cal. Aug. 23, 2019) (citing Garabedian v. Griffin 4 Steel & Supply Co., 340 F.2d 478, 479 (9th Cir. 1965); Bridgeport Music, Inc. v. Rhyme 5 Syndicate Music, 376 F.3d 615, 624 (6th Cir. 2004); Aussieker v. M&S Green-Power 6 Energy, Inc., Case No. 2:18-cv-03234-JAM-AC, 2019 WL 2183783, at *3 (E.D. Cal. May 7 21, 2019)). 8 Since service was insufficient, the Court issued a minute order on April 10, 2023, 9 directing Plaintiff to submit a revised USM-285 service form that identified the proper party 10 for service by May 10, 2023.1 (ECF No. 17.) The Court also pointed Plaintiff to the Nevada 11 Secretary of State’s website to find Walmart’s registered agent in Nevada and the Clerk 12 of Court sent Plaintiff another USM-285 form. (Id.) When Plaintiff failed to submit a revised 13 form by that deadline, the Court issued another minute order on May 12, 2023, cautioning 14 Plaintiff to submit the revised USM-285 form or complete service on an appropriate 15 Walmart agent by May 29, 2023, or face dismissal of his case for insufficient service. 16 (ECF No. 18.) See Fed. R. Civ. P. 4(m); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 17 Cir. 1986). To date, no proof of service or revised USM-285 form has been filed. 18 District courts have the inherent power to control their dockets and “[i]n the 19 exercise of that power, they may impose sanctions including, where appropriate . . . 20 dismissal” of a case. Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 21 1986). A court may dismiss an action based on a party’s failure to obey a court order or 22 comply with local rules. See Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 23 (affirming dismissal for failure to comply with local rule requiring pro se plaintiffs to keep 24 court apprised of address); Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) 25 (dismissal for failure to comply with court order). In determining whether to dismiss an 26 action on one of these grounds, the Court must consider: (1) the public’s interest in the 27

1The Court previously set aside the Clerk’s entry of default as to Walmart, Inc., 28 which was entered in error, because service was insufficient in this case. (ECF Nos. 16, 2 of prejudice to Defendant; (4) the public policy favoring disposition of cases on their 3 merits; and (5) the availability of less drastic alternatives. See In re Phenylpropanolamine 4 Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone, 833 F.2d at 130). 5 The first two factors, the public’s interest in expeditiously resolving this litigation 6 and the Court’s interest in managing its docket, weigh in favor of dismissal. The third 7 factor, risk of prejudice to Defendant, also weighs in favor of dismissal because a 8 presumption of injury arises from the occurrence of unreasonable delay in filing a pleading 9 ordered by the court or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 10 524 (9th Cir. 1976). The fourth factor—the public policy favoring disposition of cases on 11 their merits—is greatly outweighed by the factors favoring dismissal. 12 The fifth factor requires the Court to consider whether less drastic alternatives can 13 be used to correct the party’s failure that brought about the Court’s need to consider 14 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (explaining 15 that considering less drastic alternatives before the party has disobeyed a court order 16 does not satisfy this factor); accord Pagtalunan v. Galaza, 291 F.3d 639, 643 & n.4 (9th 17 Cir. 2002). Courts “need not exhaust every sanction short of dismissal before finally 18 dismissing a case, but must explore possible and meaningful alternatives.” Henderson, 19 779 F.2d at 1424. Because this action cannot realistically proceed until and unless 20 Plaintiff properly serves the sole Defendant in this case, the only alternative is to enter a 21 third order setting another deadline for service. But the reality of repeating ignored orders 22 is that it often only delays the inevitable and squanders the Court’s finite resources. The 23 circumstances here do not indicate that this case will be an exception because there is 24 no showing that Plaintiff needs additional time or evidence that he did not receive the 25 Court’s prior orders. Setting a third deadline is not a meaningful alternative in these 26 circumstances. Thus, the fifth factor also favors dismissal. 27 Having thoroughly considered these dismissal factors, the Court finds that they 28 weigh in favor of dismissal. 1 It is therefore ordered that this action is dismissed without prejudice based on 2 || Plaintiffs failure to properly serve Defendant Walmart, Inc., in compliance with the Court’s 3 || April 10, 2023, and May 12, 2023, orders. 4 The Clerk of Court is directed to enter judgment accordingly and close this case. 5 || No other documents may be filed in this now-closed case. If Plaintiff wishes to pursue his 6 || claims, he must file a complaint in a new case. 7 DATED THIS 2" Day of June 2023.

9 MANDA DO 10 CHIEF UNITED STATES DISTRICT JUDGE

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