Orlando v. Rodeway Inn

Opinion

1 ERIC S. POWERS, ESQ. NEVADA BAR NO. 12850 2 POWERS LAW 2460 Professional Court, Suite 200 3 Las Vegas, NV 89128 Telephone: 702.868.8000 4 Fax: 702.939.9968 Email: Eric@ericpowerslaw.com 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 JAMES ORLANDO, an individual, Case No. 2:22-cv-00404-APG-BNW 11 Plaintiff, 12 EX PARTE MOTION FOR v. ENLARGEMENT OF TIME TO SERVE 13 SUMMONS AND COMPLAINT CHOICE HOTELS INTERNATIONAL, INC.;

14 ROES I-X, and DOES I - X. 15 Defendants.

17 Plaintiff JAMES ORALNDO (“Plaintiff”), by and through his counsel of record, Eric S. 18 Powers, Esq. of POWERS LAW hereby moves this Honorable Court for an Order Enlarging the 19 Time for Service of the Summons and Complaint on Defendant CHOICE HOTELS 20 INTERNATIONAL, INC. (“Defendant”). 21 22 I. 23 FACTS This is an action arising out of an incident occurring on or about March 3, 2020. Plaintiff 24 25 was an invited guest at the Rodeway Inn located at 19941 W. Kellogg Drive, Goddard, 26 Kansas 67052 (“Rodeway Inn”). At the time of the incident and at all relevant times herein, 27 Rodeway Inn was owned and operated by defendant CHOICE HOTELS 28 1 INTERNATIONAL, INC. Plaintiff paid value to stay at Defendant’s property and was 2 assigned a room by Defendant’s staff. Plaintiff alleges that the flooring utilized in the rooms 3 of the Defendant’s property was specifically designed to not be slippery or create a 4 likelihood of falls. 5 6 Plaintiff was utilizing the bathroom of the room when suddenly, unexpectedly, and 7 without warning, Plaintiff slipped and fell in the bathroom of the room. Plaintiff sustained 8 significant injuries that were so severe that he had to be airlifted to the hospital for medical 9 treatment. Plaintiff alleges that the flooring and/or surfacing utilized by Defendant was 10 11 slippery, unsafe, and not reasonably suitable for the purposes of housing invited guests at 12 Defendant’s property. 13 14 II. 15 ARGUMENT 16 Plaintiff respectfully requests an enlargement of time to effectuate service on the Defendants. 17 Federal Rule of Civil Procedure 4(m) states: Federal Rule of Civil Procedure 4(m) establishes the 18 time for service on domestic defendants: 19

20 If a defendant is not served within 120 days after the complaint is filed, the court- on motion or on its own after notice to the plaintiff-must dismiss the action without 21 prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the 22 time for service for an appropriate period. Moreover, “the Court must extend the 120-day time limit of Rule 4(m) if the serving party 23 shows good cause for failure to serve within 120 days.” Panliant Fin. Corp. v. ISEE3D, Inc., No. 24 2:12-CV-01376-PMP-CWH, 2015 U.S. Dist. LEXIS 5790, at *5-6 (D. Nev. Jan. 15, 2015) see also, 25 Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). “If the serving party does not show 26 good cause, the Court has discretion to extend time for service, or to dismiss the complaint without 27 prejudice.” In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001). “The Court's discretion to extend time 28 1 for service, or to dismiss without prejudice for failure to timely serve, is broad.” Id. The Court may 2 extend time for service even after the 120-day period expires. Efaw v. Williams, 473 F.3d 1038, 3 1041 (9th Cir. 2007). 4 Here, the time for service of the original Summons and Complaint will expire on June 1, 5 2022. Plaintiff filed the instant Complaint for the purpose of preserving the statute of limitations. 6 Since then, Plaintiff has made attempts to resolve this matter without the necessity of litigation. 7 Plaintiff has communicated with the appropriate personnel regarding this matter to resolve this 8 claim. Additional time is required to evaluate the medical records and other documentation that is 9 germane to Plaintiff’s injuries and damages regarding this claim. 10 Moreover, Plaintiff recently discovered that the proper defendant in this action is the current 11 defendant (rather than the originally sued defendant herein). Plaintiff’s First Amended Complaint 12 was filed on April 5, 2022. Accordingly, Plaintiff hereby respectfully requests that additional time 13 be permitted to serve the summons and complaint in this matter for the purpose of resolving this 14 matter without litigation. Resolving this matter without the necessity of conducting formal litigation 15 is in the best interest of the parties because it will save time and expense. Moreover, the extension 16 will also promote judicial economy as this matter will likely be resolved prior to a formal appearance 17 by Defendant. 18 Again, both NRCP 4(e)(3) and its federal counterpart provides that: “[u]pon a showing of 19 good cause, the Court shall extend the time for service and set a reasonable date by which service 20 should be made.” Id. Good cause does exist to grant this Motion. Since the Complaint was filed, 21 significant resources and effort have been made to resolve this matter. Namely, Plaintiff has 22 determined who the appropriate individuals are with authority to resolve this matter without 23 litigation and contacted them for the purposes of the same. Those communications are currently 24 ongoing. Should the Court not extend the time for service, Plaintiff will be forced to serve the 25 Defendants. This will likely disrupt settlement negotiations because the Defendants will be forced 26 to answer the Complaint and expend resources to actively defend this action. These factors 27 constitute good cause under the Rules. Id. 28 If additional time is not granted, Plaintiff will be forced to refile this action and start all over 1 again. This defeats the purpose of saving economic expense. Moreover, there is no prejudice to an 2 Defendant under any circumstances by granting the Motion. Therefore, Plaintiff respectfull 3 requests that this Court grant its Motion to Enlarge the Time for Service of the Defendants for a1 4 additional 120 days beyond the date of filing Plaintiffs First Amended Complaint. 5 III. 6 CONCLUSION 7 Based upon the foregoing, Plaintiff respectfully requests an extension of time to serve the 8 Defendants for an additional 120 days. 9 10 Dated this 1“ day of June, 2022. POWERS LAW 11 12 By: __s Eric §. Powers 13 ERIC S. POWERS, ESQ. Nevada Bar No. 12850 14 2460 Professional Court, Suite 200 Las Vegas, Nevada 89128 Tel: (702) 868-8000 16 Attorneys for Plaintiff 17 ORDER 18 IT IS SO ORDERED 19 DATED: 7:43 pm, June 02, 2022 20 51 □□ We bao BRENDA WEKSLER 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 3380.43257