Landwer v. Royal Neighbors of America

Opinion

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

9 Charles H Landwer, No. CV-24-03134-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Royal Neighbors of America, et al.,

13 Defendants. 14 15 Pending before the Court is Plaintiff Charles H. Landwer’s (“Plaintiff”) motion for 16 extension of time to serve the summons and the complaint. (Doc. 15). For the following 17 reasons, the Court will grant the motion. 18 I. ANALYSIS 19 a. Notice of Proof of Service: Defendant Royal Neighbors of America 20 After filing his motion for extension of time for service, Plaintiff filed a notice of 21 proof of service for Defendant Royal Neighbors of America (“Royal Neighbors”). (Doc. 22 19). Because Royal Neighbors is domiciled in Illinois, (Doc. 1 at 3), it is a foreign insurer 23 under state law1 and service of process “shall be made only by service of process upon the 24 director.”2 Ariz. Rev. Stat. § 20-221(B) (emphasis added). In this context, “director” means

25 1 Royal Neighbors is listed in the Arizona system of the National Association of Insurance Commissioners as having a domicile type of “foreign,” in the state of Illinois. Company 26 Lookup, Nat’l Ass’n of Ins. Comm’rs, https://sbs.naic.org/solar-external- lookup/lookup/company/summary/49209336?jurisdiction=AZ (last visited March 25, 27 2025). 2 Because serving the Director of the Arizona Department of Insurance and Financial 28 Institutions is the only way to effectuate service upon Royal Neighbors under Arizona law, the Court need not address Plaintiff’s attempt to serve Royal Neighbors directly via 1 the Director of the Arizona Department of Insurance and Financial Institutions (“ADIFI”). 2 Plaintiff claims that the summons and complaint “were provided” to the Director of 3 the ADIFI on March 12, 2025. (Doc. 19 at 2). However, Plaintiff does not say who provided 4 the summons and the complaint to the Director. Under Federal Rule of Civil Procedure 5 4(c)(2), a party to the lawsuit may not serve the summons and complaint. In other words, 6 service of process is not complete if Plaintiff himself served the Director. Without proof 7 that someone other than Plaintiff completed service, the Court does not find service 8 completed at this time. The Court will therefore consider Plaintiff’s motion for extension 9 of time for service as it pertains to all three Defendants. 10 b. Motion for Extension of Time 11 i. Legal Standard 12 There are two ways that the Court may extend the time for service set by Federal 13 Rule of Civil Procedure 4(m). See Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 14 2009).

15 The first is mandatory. Based upon the plain language of that Rule, “the district court must extend time for service upon a showing of good cause.” Lemoge, 587 16 F.3d at 1198.

17 The second is discretionary. Notwithstanding Rule 4(m), “if good cause is not established, the district court may extend time for service upon a showing of 18 excusable neglect.” Id.

19 Engaging in the two-step analysis which the Ninth Circuit requires, the court will first consider whether on this record there is good cause, thus mandating an 20 extension of time for service under Rule 4(m). See In re Sheehan, 253 F.3d at 512. Courts must determine whether good cause “has been shown on a case by case 21 basis.” Id.

22 Trueman v. Johnson, No. CV 09-2179-PHX-RCB, 2011 WL 6721327, at *3 (D. Ariz. Dec. 23 21, 2011) (cleaned up). 24 ii. Analysis 25 Plaintiff “believes he can show good cause for the failure to timely serve Defendants 26 Royal Neighbors of America and US Funeral Expenses,”3 and he says that his “inability to 27 certified mail. (See Doc. 19 at 2-3). 28 3 For an unknown reason, Plaintiff omitted reference here to Defendant John Doe I, referred to as Thomas Greene in the complaint. 1 effectuate timely service is not attributable to [his] lack of diligence or efforts but rather 2 the efforts of the Defendants in evading service.” (Doc. 16 at 7). The Court will first 3 analyze whether Plaintiff has made a showing of good cause such that a mandatory 4 extension of time is warranted. If the Court finds Plaintiff has not shown good cause, the 5 Court still may grant the motion under its discretionary power. 6 “Good cause to avoid dismissal may be demonstrated by establishing, at minimum, 7 excusable neglect.” Trueman, 2011 WL 6721327, at *3 (quoting Lemoge, 587 F.3d at 1198 8 n. 3). “To determine whether the plaintiff’s failure to serve constitutes ‘excusable neglect,’ 9 the court should examine the following factors: (1) the danger of prejudice to the defendant; 10 (2) the length of the delay and its potential impact on the judicial proceedings; (3) the 11 reason for the delay; and (4) whether the movant acted in good faith.” Pember v. Ryan, No. 12 CV-11-2332-PHX-SMM, 2014 WL 3397735, at *3 (D. Ariz. July 11, 2014). The Court 13 should also consider whether the party to be served received actual notice of the suit and 14 whether Plaintiff would suffer severe prejudice if the complaint were dismissed. Lemoge, 15 587 F.3d at 1198. 16 Here, Plaintiff generally argues that “[t]he Defendants would not suffer any harm 17 or prejudice if the Plaintiff were allowed an additional period of time to serve them” 18 because “[a]ll the Defendants are aware of the pending matter and have received a copy of 19 the Summons and Complaint.” (Doc. 16 at 7). The Court agrees that any prejudice to the 20 defendants is minimal. Conversely, Plaintiff argues that he “would suffer prejudice if the 21 matter were dismissed” because he “would be forced to refile the matter” and would have 22 to re-attempt to serve Defendants which would result in him “be[ing] in the same position.” 23 (Doc. 16 at 7). The Court agrees, but because Plaintiff would have the opportunity to refile 24 this suit, the Courts finds this factor neutral. 25 The Court adds that Plaintiff filed the complaint in this case on November 12, 2024 26 and service was originally due by February 10, 2025. Plaintiff did not serve by this 27 deadline, but instead filed a status report on February 24, 2025, (Doc. 13), in which Plaintiff 28 recounted his efforts to serve and stated that he believed he would accomplish service 1 within 60 days. The Court directed Plaintiff to file the instant motion, (Doc. 14), which 2 Plaintiff did on March 10, 2025, (Doc. 15). Plaintiff now asks the Court to give him until 3 May 15, 2025. (Doc. 16 at 9). In sum, Plaintiff asks for a total of 94 additional days to 4 effect service. The Court finds this length of delay to be insignificant. Cf. Efaw v. Williams, 5 473 F.3d 1038, 1041 (9th Cir. 2007) (finding seven-year delay “extraordinary”). 6 The Court also recognizes that it denied Plaintiff’s motion for service by the 7 Marshals, (Docs. 9, 12), and that Plaintiff has made subsequent efforts to serve defendants. 8 Although Plaintiff has not been successful, there is no basis for the Court to conclude that 9 Plaintiff is not acting in good faith. 10 Moreover, it appears that both Royal Neighbors and US Funeral Expenses have 11 received actual notice of the suit. Plaintiff received a United States Postal Service return 12 receipt from Hannah Lupinski of Royal Neighbors. (Doc. 16 at 4). Plaintiff also “spoke 13 with the management at Royal Neighbors of America” and has the impression that Royal 14 Neighbors will “process the Waiver of Service.” (Doc. 16 at 4-5). While this may be 15 enough to suggest that Royal Neighbors has actual notice of the suit, as the Court noted 16 above, Plaintiff may not serve Royal Neighbors via mail or a process server. 17 Plaintiff separately sent “a Waiver of Service with a copy of the Summons and 18 Complaint” to US Funeral Expenses, via certified mail with a return receipt requested. 19 (Doc. 16 at 3, 6). It does not appear that Plaintiff received a return receipt from US Funeral 20 Expenses. However, Plaintiff does claim that he “received a telephonic response” from the 21 “purported president” of US Funeral Expenses, Jubran Abdulaziz. (Doc. 16 at 4). This 22 suggests that US Funeral Expenses also has actual notice of the suit. Plaintiff also says he 23 “contracted with a Private Service of Process firm” to serve US Funeral Expenses. (Doc. 24 16 at 5). That process server seemingly made multiple attempts at service but was 25 ultimately unsuccessful. (Doc. 16 at 5). Plaintiff therefore “is in the process of contracting 26 with” a different private process server. (Doc. 16 at 6). Upon consideration of all the 27 factors, the Court finds Plaintiff has shown good cause for his delay in serving defendants. 28 Even if Plaintiff has not shown good cause, the Court can still grant Plaintiff’s 1 motion under its discretionary authority. The Ninth Circuit Court of Appeals has declined 2 to “articulate a specific test that a court must apply in exercising its discretion under Rule 3 4(m)[,]” noting “that, under the terms of the rule, the court’s discretion is broad.” Gill v. 4 Waikiki Lanai, Inc., 2011 WL 3648772, at *7 (D. Hawai’i Aug. 18, 2011) (quoting In re 5 Sheehan, 253 F.3d 507, 513 (9th Cir. 2001) (citation omitted)). “In making extension 6 decisions under the court’s discretionary powers, a court may consider the excusable 7 neglect factors as stated above, including ‘a statute of limitations bar, prejudice to the 8 defendant, actual notice of a lawsuit, and eventual service.’” Pember, 2014 WL 339773, at 9 *4 (quoting Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007)). The Court incorporates 10 its analysis of excusable neglect above.4 Finding no additional considerations relevant, the 11 Court finds an extension of time appropriate under the Court’s discretionary power. 12 iii. Defendant John Doe I 13 The Court notes that Plaintiff’s motion often omits reference to Defendant John Doe 14 I, primarily referred to as “Thomas Greene” in the complaint. (See, e.g., Doc. 16 at 2 15 (“Plaintiff believes he can show good cause for the failure to timely serve Defendants 16 Royal Neighbors of America and US Funeral Expenses.”); Doc. 16 at 9 (“Plaintiff 17 respectfully requests an extension . . . in which to serve the Defendants, Royal Neighbors 18 of America and US Funeral Expenses. . .”)). Plaintiff does say that he “sent the three 19 Defendants” the summons and complaint via certified mail, return receipt requested, but as 20 the Court notes above, Plaintiff himself cannot serve Defendant Greene because Plaintiff 21 is a party to the suit. See Fed. R. Civ. P. 4(c)(2). 22 II. CONCLUSION 23 Accordingly, 24 IT IS ORDERED that the motion for extension of time to serve, (Doc. 15), is 25 GRANTED. The deadline to serve Defendants Royal Neighbors of America, US Funeral 26 4 “Since excusable neglect is the benchmark for both mandatory and discretionary 27 extension of time, the two standards are often conflated.” Pember, 2014 WL 3397735, at *5. Here, the Court chose to analyze whether excusable neglect exists in its discussion of 28 whether a mandatory extension of time must be granted. However, the same analysis is applicable to the Court’s decision in whether to grant a discretionary extension. || Expenses, and John Doe I is May 15, 2025. Any motion for alternative service or motion 2|| for additional time to serve is also due by May 15, 2025. If Plaintiff fails to comply with this Order, any unserved Defendants will be dismissed. 4 Dated this 4th day of April, 2025. 5 6 '

James A. CO 8 Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 □ > Once Plaintiff is aware of Defendant John Doe I’s real name, Plaintiff must file an amended complaint substituting that name. See Fed. R. Civ. P. 15(a)(2); Ivan v. Wells Fargo Bank, NA. CV 12-1068-PHX-JAT. 2012 WL 3095050, at *2 (D. Ariz. July 30, 28 2013) (citing Fed. R. Civ. P. 10(a)) (Generally, the Federal Rules of Civil Procedure do not permit the use of Doe defendants.”). -6-