Polk v. Carpenter

Opinion

wD YS A OI eV ee ee □□ DTU lel he aye SN

AARON D. FORD Attorney General CHARLES H. ODGERS, Bar No. 8596 Deputy Attorney General State of Nevada Public Safety Division 100 N. Carson Street Carson City, NV 89701-4717 Tel: (775) 684-1261 E-mail: codgers@ag.nv.gov Attorneys for Defendants James Donnelly

Il |] RENARD T, POLK, Case No. 3:16-cv-00652-MMD-VPC Plaintiff, MOTION FOR ENLARGEMENT OF TIME FOR DEFENDANT TO FILE HIS REPLY TO vs. PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS RONALD WALDO (ECF NO, || TARA CARPENTER, et al., | 101) Defendants. Defendant, James Donnelly, by and through counsel, Aaron D. Ford, Attorney General of th State of Nevada, and Charles H. Odgers, Deputy Attorney General, hereby move this Court for an orde enlarging the time to file his reply to Plaintiff's Opposition to Motion to Dismiss Ronald Waldo □□□□ No. 101). This Motion is made pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. Proc.”) 6(b and is based upon the following Points and Authorities and all pleadings and papers on file herein. Thi Motion is made in good faith and not for the purposes of undue delay. 1. | NATURE OF MOTION The Defendants submit there is good cause to enlarge the time for Defendant to file his reply t Plaintiff's Opposition to Dismiss Ronald Waldo (EFC No. 101). . ARGUMENT Fed. R. Civ. P. 6(b) grants this Court discretion to enlarge the period of time in which an act 1 to be done. Fed. R. Civ. P. 6(b)(1)(b) provides in pertinent part:

WHOA Se VV ee be □□ ive alle Nah te te ta “ae

When by these rules .. . or by order of court an act is required or allowed to be done at or within a specified time, the court for good cause extend the time on motion made after the time has expired if the party failed to act because of excusable neglect. The time for Defendants to respon the Plaintiff's opposition has expired. The request fo enlargement is timely because defense co nsel has recently been given numerous new cases □□□□□□ transferred cases from attorneys that have left the office. Defense Counsel has been diligent ir preparing responses and other pleadings jin this and other cases. This Reply was drafted by the undersigned on September 18, 2019 in it entirety. However, it appears that it was never sent tc counsel’s secretary to file. It is the sole responsibility of counsel. In preparing other briefing in thi: case, it became apparent that an error had ocurred and counsel learned today that in fact counsel dic not send the brief to be filed. Attached for the Court’s review is the Reply Brief for which this motior is based and Counsel respectfully requests this Court grant this motion. This request for enlargement of time is made in good faith and not for the purpose of delay. ) 00. CONCLUSION Based on the foregoing the Defendant respectfully submits that the Court should grant th Defendants’ motion and enter an Order enl rging the time to file the attached Reply Brief. DATED this Ist day of October, 2019. AARON D. FORD _ Attorney Genera . By: Cc ES H. ODGERS, Bar No. 8596 Deputy Attorney General Attorneys for Defendant IT IS SO ORDERED. Q) 9 Ah J MAGISTRATE JUDGE (us MAGISTRA) patep: (O/3/C0L

ee EEE IE IE IIE EE IEEE I certify that ] am an employee of the |Office of the Attorney General, State of Nevada, and tha jj on this Ist day of October, 2019, I caused ta be served electronically via the CM/ECF, the foregoing MOTION FOR ENLARGEMENT OF TIME FOR DEFENDANT TO FILE HIS REPLY TC PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS RONALD WALDO (ECF NO. 101) to the following: ! Renard T. Polk, #72439 g |j Ely State Prison P.O. Box 1989 Ely, NV 89301 (\ pf Aa ps So An employee of the Office of the Attorney General | |

fi

EXHIBIT A

Reply to Plaintiff’ s Opposition tc Defendants’ Motion to Dismiss Ronald Waldo

EXHIBIT A

Net Ae NO FOO re Pe be ey ave LN oe 5 My a WI oe

} AARON D. FORD Attorney General CHARLES H. ODGERS, Bar No. 8596 Deputy Attorney General State of Nevada Public Safety Division 100 N. Carson Street Carson City, NV 89701-4717 Tel: (775) 684-1259 E-mail: codgers@ag.nv.gov Attorneys for Defendant James Donnelly g UNITED STATES DISTRICT COURT RENARD T. POLK, Case No. 3:16-cv-00652-MMD-CBC Plaintiff, vs. REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS TARA CARPENTER, et al., RONALD WALDO (ECF NO. 101) Defendants. Defendant, James Donnelly, by and through counsel, Aaron D. Ford, Attorney General of th j State of Nevada, and Charles H. Odgers, D ouaty Attorney General, hereby files this Reply to Plaintiff’: Opposition to Defendant’s Motion to Dismiss Ronald Waldo (ECF No. 101) for failure to serv pursuant to Fed. R. Civ. P. 4(m). This reply is made and based on the attached Memorandum of Point and Authorities. 1. LEGAL ARGUMENT A. THE OFFICE OF THE TRORNEY GENERAL IS NOT THE ATTORNEY O] RECORD FOR MR. WALDO AND THE ATTORNEY GENERAL’S OFFIC] HAS NOT MADE A GENERAL APPEARANCE ON BEHALF OF MR. WALDO. Plaintiff alleges the undersigned represents Mr. Waldo. ECF No. 101, p. 1, ll. 22-28. Tob j clear, the undersigned has not entered a general appearance on behalf of Mr. Waldo, nor is the Office o the Attorney General providing legal services for an unserved party. Fed. R. Civ. P. 4(m) provides: If a defendant is not served within 90 days after the complaint is filed, the court — on motion or on its own after notice) to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specific time.

ee Ne et | ha PIN es YS

In preparation to take a matter to tial, it is common to dismiss unserved parties. In this case Plaintiffs Motion for Default required a sponse by Defendant Donnelly. See LR7-2(d)(“{...] The failure of an opposing party to file points and authorities in response to any motion, except a motior ] under Fed. R. Civ. P, 56 or a motion for attorney’s fees, constitutes a consent to the granting of th motion.”) The undersigned filed the opposition and filed the motion to dismiss Mr. Waldo □□□□□□ Plaintiff failed to provide proof of service of the summons and complaint. See Fed. R. Civ. P. 4(m supra. This does not make the undersigned, Mr. Waldo’s attorney, nor is the undersigned representing Mr. Waldo. B. DEFENDANT DONNELLY IS NOT MR. WALDO’S PRINCIPAL. Plaintiff next asserts that Defendant|Donnelly is acting as the principal for Mr. Waldo. ECF No } 101, p. 2, ll. 4-7. Besides having no basis in truth or fact, Plaintiff fails to cite any case law or statutory provision supporting his proposition. ther, Plaintiff cites to NRS 77.40, which defines ; “commercial registered agent”, which has n applicability to the argument being pursued by Plaintiff As such his citation to and reliance upon NR 77.40 is misplaced at best. Cc. LEGAL ARGUMENTS ARE NOT HEARSAY AND THE COURT IS ENTITLEI TO TAKE JUDICIAL NOTICE OF FILINGS IN THIS CASE.

Plaintiff's next argument is the Court cannot accept legal arguments from counsel as i || constitutes hearsay. ECF No. 101, p. 2, Il.|13-28, p. 3, Il. 9. Plaintiff seems to assert that relying □□□□ the record of documents filed in this case, including the return of service showing inability to serve Mr Waldo, is hearsay. Id. The Court may take judicial notide of documents filed within a case. FEDERAL RULES 01 EVIDENCE 201 provides, “[t]he court ma judicially notice a fact that is not subject to reasonabl dispute because it is generally known within the trial court’s territorial jurisdiction; or can be accuratel and readily determined from sources whos¢ accuracy cannot reasonably be questioned.” The corollar to that is the absence of documents filed in la case supports the proposition that they have not been filed Defendant relied upon the U.S. Marshal's Summons Return to support his claim that Mr. Waldo wa not served. Unless Plaintiff is questioning the U.S. Marshal Service integrity, Defendant asserts thi source of information cannot be reasonably questioned.

NRA ON Ne BE RE DM Oe

Importantly, Plaintiff fails to establish he received consent to service by other means. See Fed R. Civ. P. 5(b)(2)(E). “A paper is served under this rule by: [...] sending it to a registered user by filing it with the court’s electronic-filing system or sending it by other electronic means that the persor consented to in writing-in either of which events service is complete upon filing or sending, but is no effective if the filer or sender learns that it did not reach the person served”). Jd. (emphasis added). The Court may take judicial notice there is no filing of a written consent to be served by electronic means filed with the Court’s electronic-filing system. The Court may also take note of th || lack of a copy of a writing, signed by Mr| Waldo to support Plaintiff's “declaration” that Mr. Waldc consented to be “served with a copy of the summons and complaint through telecommunicated (sic means, or otherwise on April 4, 2018 @ 2:20 pm” as claimed in his Motion for Default. See ECF No 94, p. 2, Il. 3-6. Fed. R. Civ. P. 4()(1) requires proof of service to be made to the court, except service by the U.S. Marshal, and the proof must be by the server’s affidavit. Jd. The Court is invited to tak judicial notice there is no evidence filed with the Court to prove service upon Mr. Waldo on April 4 2018 at 2:20 pm. The Court may likewise take judicial notice of the lack of any motion filed by Plaintiff and approved by the Court to provide served by other means. Fed. R. Civ. P. 5(b)(2)(F). These are not hearsay statements, they are facts supporting the legal analysis in the motion, fact which the FRE 201 specifically authoriz s and invites this Court to take notice of, These are no presumptions, these are the documents on file with the Court as required to prove the Court ha: || jurisdiction to enter Default against Mr. Waldo. Federal courts lack personal jurisdiction over | defendant unless the defendant has been! properly served in accordance with Rule 4. Crowley v Bannister, 734 F.3d 967, 974-75 (9th Cir. 2013). The burden in on the Plaintiff to prove service and h fails to meet that burden. This Court cannot enter Default a inst Mr. Waldo, because the Court does not have persona jurisdiction over Mr. Waldo. W/// Wii

Ne Ne ee tN NE Nt Nt ae TT Nal Nt Kent et et □□ Nr te TEM DO RR RE Ee

D. THE MOTION FOR oe JUDGMENT WAS A RULE 12(b)(6) MOTION AND THE ATTORNEY GENERAL’S OFFICE HAD THE OBLIGATION TC FILE THE RULE 12(b)(6) MOTION BEFORE FILING AN ANSWER.

Plaintiff's next claim is Mr, Waldo’s “appearance has been generally had through ‘consent[ing] to the Attorney General’s legal representation following an unsuccessful summary judgment anc subsequent answer to the complaint.” ECF Ni . 101, p. 3, Il. 10-16. On November 5, 2017, the Court entered an order requiring the Attorney General’s Office tc advise the Court within 21 days of whether it will enter a limited notice of appearance on behalf of th: Defendants for the purpose of settlement. F No. 17, p. 3, ll. 5-9. The Court noted “[n]o defenses o objections, including lack of service, shall be waived as a result of the filing of the limited notice o appearance.” Jd. ll Pursuant to that Order on Decemb □ 5, 2017 the Attorney General’s Office, filed its Notice o Limited Appearance. ECF No. 18. The case went through the Court-Ordered mediation on Februar 13, 2018. Mediation failed to resolve the case. ECF No. 23. On February 15, 2018 the Court entere Order requiring the Attorney General’s Office be served with the complaint (ECF No. 16) bu cautioned this was not an acceptance of se ide. ECF No. 25, p. 2, ll. 13-16. The February 15, 2018 Order also required the Attorney General’s Office to file a notice o acceptance of service advising the Court and the Plaintiff for which defendant(s) the Attorney General’ Office accepted service, the names of the efendants for whom service was not accepted and their last known-addresses which was to be filed un er seal. fd. p. 2, ll. 19-27. Pursuant to the Order (EFC No. 25), on February 22, 2018, the Attorney General’s Office files the Notice of Acceptance of Service identifying acceptance of service for Defendant Donnelly only an not accepting service for Defendant Waldo. ECE No. 27. Defendant Waldo’s last-known-address wa filed under seal that same day. ECF No. 28. On March 19, 2018 the Court entered a minute Order notifying Plaintiff the Attorney General’ Office did not accept service upon Defendant Waldo and directed the Clerk to issue the Summons an provided guidance to Plaintiff on how to request service from the U.S. Marshal. ECF No. 31. The } summons was issued on March 19, 2018, ECF No. 32. W///

NRA et Nl a NN NE ee oop □□ EST □□ ae

The Court’s February 15, 2018 Order also provided sixty days for the Attorney General’s Office to file an Answer or other responsive pleading. ECF No. 25, p. 3, ll. 8-10. On April 16, 2018, the day the Answer or other dispositive motions was due, the Attorney General’s Office filed the Motion fo ! Summary Judgment where both Donnelly □ Waldo were identified as the Defendants for purposes o this dispositive motion. ECF No. 34. Mo A practice ensued and the Court entered an order denyins the Summary Judgment Motion on March 4, 2019, ECF No. 62. As the Court denied the dispositiv: motion, the Attorney General’s Office filed the Answer for the only Defendant it had accepted service for, Defendant Donnelly. ECF No. 64. “Federal Rules of Civil Procedure do not expressly authorize or prohibit an attorney’s □□□□□□ scope appearance in a federal action.” Folta y. Winkle, No. CV-14-01562-PHX-PGR (ESW), 2016 WI 4087103, at *1 (D. Ariz. July 28, 2016). Here the Court ordered the Attorney General’s Office to mak the limited appearance for the limited purpose of mediation. However, that limited scope was extende || by virtue of the need to file a Rule 12(b)(6)|motion on the theory of failure to exhaust administrativ remedies as required by the Prison Litigatian Reform Act (“PLRA”). PLRA provides that “[nJo action shall be brought with respect to prison conditions under [4: U.S.C. 1983] ... by a prisoner ... until such administrative remedies as are available are exhausted.” 4 U.S.C. 1997e. Exhaustion is mandatory. ooth v. Churner, 532 U.S. 731, 741 (2001). PLRA exhaustion requirement is not jurisdictional; rather, it creates an affirmative defense tha a defendant may raise in a non-enumerated Rule 12(b) motion. See id. at 216 (“[I]nmates are nc required to specially plead or demonstrate exhaustion in their complaints.”); Wyatt v. Terhune, 315 F.3 1108, 1117-19 (9th Cir.), cert. denied s b nom.; Alameida v. Wyatt, 540 U.S. 810 (2003). Th defendant bears the burden of raising and roving the absence of exhaustion. Wyatt, 315 F.3d at 1115 A district court may look beyond the pleai ings in deciding a motion to dismiss for failure to exhau: ) administrative remedies. Jd. at 1120 n. 14.) The underlying motion filed by Defendants in EFC No. 34 was a motion to dismiss for failure t 46 state a claim under Rule 12(b)(6) because administrative exhaustion is mandatory and if Plaintiff faile 97 to exhaust his administrative remedies, then the Court would have been required to dismiss the case without prejudice. As matters outside the pleadings were to be considered on the motion, it wa os

eC Ne Ne ee oy IN EN RE Pe OM

required to be treated as a motion for summaly judgment under Fed. R. Civ. P. 56. See Fed. R. Civ. P > 12(d). NRS 41.0339 requires the Attorney General’s Office to provide representation to employees anc former employees of the State who are sued for actions taken as part of their official job duties. Certair requirements must be met, including a request for representation after the employee or former employe: l/is served. Jd. In this case, Mr. Waldo has never been served, nonetheless, the Attorney General’: Office had a legal obligation to include Mt. Waldo in the motion for summary judgment as it was the first responsive pleading in this case and if granted, would have prevented the need for him to be servec and it was in compliance with the mandates of NRS 41.0339. The filing the Motion for Summary Judgment did not extend representation to Mr. Waldo. Mr Waldo has not been served and he has not tequested representation from the Attorney General’s Office pursuant to NRS 41.0339. Plaintiff's opposition is without merit. Plaintiffs factually and legalh unsupported claim that Defendant Donnelly waived and forfeited his right to oppose the Default □□□□□□ and to file the Motion to Dismiss for failur 3 to serve must be rejected and denied. E. PLAINTIFF’S REQUEST TO EXTEND THE TIME TO SERVE MR. WALDO I IMPROPER. ! Plaintiff's final request, which is improper to be made in an Opposition, is that he be allowec the privilege of an extension of time to serve Mr. Waldo. ECF No. 101, p. 4, Il. 21-25. Although pro se litigants are generally held to less stringent standards, “pro se litigants in th ordinary civil case should not be treated more favorably than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir, 1986). It is a plaintiff's responsibility to move th case toward disposition on the merits, Jn re Exxon Valdez, 102 F.3d 429, 433 (9th Cir. 1996), and a pr se litigant must follow the same rules of procedure that govern other litigants. King v. Atiyeh, 814 F.2 565, 567 (9th Cir. 1986); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (noting that “pro se litigant are bound by the rules of procedure”). Fed. R. Civ. P. 4(m) requires a defendant be served within 90 days after a complaint is filed. court may dismiss an action without prejudice if the summons and complaint are not timely served on defendant. Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). However, Fed. R. Civ. □□

eee ND EE } 4(m) requires the court to extend the time for service if a plaintiff shows good cause for the failure tc timely serve. Jd. As a general matter, a showing of good cause requires more than simpl inadvertence, mistake, or ignorance of the procedural rules. Martin v. Longbeach, 246 F.3d 674 (9t Cir. 2000). The Court has “broad discretion” to extend the time for service under Rule 4(m). See Efaw 473 F.3d at 1040-41. Plaintiff must support his request for additional time by showing what efforts he took to obtair information on the location of the defendant to be served. McIntyre v. Naphcare, Inc., 2018 WI 5114128 *4 (Nev. 2018). This would include what efforts his family and friends, not incarcerated, ma} have taken to locate the missing defendant, including, but not limited to, a general internet search fo the defendant to determine if there are other public records available to assist in locating the missin; defendant. Here, Plaintiff has made no showing of any efforts to locate Mr. Waldo. Plaintiff filed hi: ] motion for default alleging he made service and no response was received. Now in his reply to th opposition he claims he needs more time to serve Mr. Waldo, without a showing of good cause why h should receive any additional time. 491 days have lapsed since Plaintiff was notified that Mr. Wald. was not able to be served with the summédns and complaint by the U.S. Marshal and his filing of hi j motion for default (April 17, 2018 and August 21, 2019). In that time, Plaintiff fails to explain wha || steps he has taken in an attempt to find and|serve Mr. Waldo. Good cause does not exist to grant|Plaintiff an extension of time to serve Mr. Waldo. On tha basis, his request for an extension to serve should be denied. Fed. R. Civ. P. 4(m). IL CONCLUSION For all of the reasons stated herein, psfedn Donnelly respectfully requests this Court gran his motion to dismiss Ronald Waldo for Plaintiff's failure to serve pursuant to Fed. R. Civ. P. □□□□ Moreover, Defendant Donnelly respectfully requests this Court deny Plaintiff's request for additional i // W//i :

W///

aoe enn OE time to serve Ronald Waldo. Finally, Defendant Donnelly respectfully requests this Court deny Plaintiff's Motion for Default. DATED this Ist day of October, 2019. _ AARON D. FORD Attorney 7 ey ) ur * Cl Si [Od Jo, 8596 Deputy Attorney General Attorneys for Defendant

0s [lo

Nt CAD ee OO ee Le oy ate PTE Aa we □ oe COA A Oe

crema OF SERVICE I certify that I am an employee of the |Office of the Attorney General, State of Nevada, and tha on this Ist day of October, 2019, I caused to be deposited for mailing in the U.S. Mail a copy of th foregoing, REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TC ] DISMISS RONALD WALDO (ECF NO. 101), to the following: Renard T. Polk, #72439 Ely State Prison P.O. Box 1989 Ely, NV 89301 ‘ol a Oe A ep 1] An employee of the Office of the Attorney General : °