1 UNITED STATES D ISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 Martrail Robinson, Case No. 2:21-cv-01646-ART-BNW
5 Plaintiff, Order 6 v.
7 Circa Resorts LLC, et al.,
8 Defendants.
9 10 I. Factual and Procedural Background 11 Robinson, Plaintiff, alleges in his complaint that he is a disabled veteran and utilizes a 12 service dog. While at Circa Resort’s swimming pool on May 16, 2021, Circa security guards 13 asked him to leave the premises. Robinson was told that the service dog bit a server. Robinson 14 contends that as he was exiting the premises, a Circa employee told him that the biting incident 15 had been fabricated to make Robinson leave the premises. 16 On May 25, 2021, Robinson went back to Circa and spoke to Castillo, one of the security 17 guards. Robinson asked Castillo to review the tape to see if the dog had in fact bitten anyone. 18 Robinson contends the tape was never reviewed and that it may have been destroyed. 19 The complaint, filed September 7, 2021, names two defendants, Circa and Castillo. It 20 includes several counts, including violations of the Americans with Disability Act. 21 Service of the complaint was executed on Defendants Circa and Castillo on November 1, 22 2021. ECF Nos. 7, 8. 23 In the instant motion, Circa appears on behalf of Castillo for the limited purpose of 24 quashing service on Castillo and/or dismissing the case against Castillo. ECF No. 15. Robinson 25 opposed, arguing that Circa cannot seek relief on Castillo’s behalf and that, in any event, service 26 on Castillo was proper. ECF No. 21. Circa replied at ECF No. 26, and Robinson filed a sur-reply 27 at ECF No. 27-1. 1 II. The Parties’ Positions 2 Circa argues that it can make a limited appearance and seek to quash service on Castillo 3 even if it is not appearing as counsel for Castillo. Circa does not develop this argument much, 4 although it cites to Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986), for the proposition that a 5 party can challenge service of process without formally appearing. 6 Next, Circa explains that service on Castillo was effectuated by serving the summons on 7 Susan Atkinson, who cannot accept service on behalf of Castillo unless Castillo authorized her to 8 accept service of process on his behalf. The same argument applies to Susan Hitch, on whose 9 behalf Susan Atkinson accepted service. 10 Circa also explains that Castillo is no longer working for Circa—and was not working for 11 it at the time the complaint was served. Further, as far as Circa knows, Castillo is not aware of 12 this lawsuit. Circa is intervening to avoid any prejudice it might suffer if a default is entered 13 against Castillo while Circa litigates the case on the merits. As a result, Circa moves to quash 14 service on Castillo and dismiss the action under Fed. R. Civ. P. 12(b)(5). 15 Robinson argues, on the one hand, that Circa cannot intervene on behalf of Castillo. In 16 this vein, he argues that Castillo has not consented to the representation by Circa’s counsel. On 17 the other hand, he appears to take the position that the Court should proceed as if Circa were 18 representing him. Lastly, Robinson argues that, under Nevada law, a party can only assert its own 19 rights and cannot raise the claims of a third party that is not before the court. According to 20 Robinson, Circa is intervening in the hopes that the case will be dismissed against Castillo and 21 that the statute of limitations will bar him from re-filing certain claims.1 22 As for service, Robinson’s counsel explains that he had been in communications with 23 Susan Hitch, Circa’s CFO, who implied that she could accept service on behalf of both Circa and 24 Castillo. Atkinson accepted service on Hitch’s behalf. This, in Robinson’s view, constitutes 25 proper service. In any event, to the extent there was an issue with service, Robinson contends it 26
27 1 The Court understands that Robinson takes a different position regarding the statute of limitations on certain claims 1 was only a technical defect. Thus, Robinson argues, given the flexibility of Fed. R. Civ. P. 4 and 2 the lack of any prejudice to Castillo, the motion should be denied. 3 III. Analysis 4 “[A] party generally must assert his own legal rights and interests.” Kowalski v. Tesmer, 5 543 U.S. 125, 129 (2004) (internal quotation omitted). Kowalski explains that this rule is not 6 absolute, but the decision does not analyze whether one party can seek relief for another party. 7 Here, Circa hardly developed the issue—citing only to Benny v. Pipes, 799 F.2d 489 (9th Cir. 8 1986), which fails to address whether Circa can invoke the rights of Castillo. Thus, the Court will 9 not permit Circa to seek relief on behalf of Castillo. 10 Nevertheless, Robinson failed to establish proper service on Castillo. As applicable here, 11 Fed. R. Civ. P. 4(e)(1) and 4(e)(2)(C) required Robinson to either follow state law or deliver a 12 copy of the summons and complaint to “an agent authorized by appointment or by law to receive 13 service of process.” Robinson—who bears the burden—has not demonstrated that either rule has 14 been satisfied. See Patel-Julson v. Paul Smith Las Vegas, Inc., No. 2:12-CV-01023-MMD, 2013 15 WL 1752897 * 2 (D. Nev. Apr. 23, 2013). First, he does not discuss whether service complies 16 with state law. In addition, he has not demonstrated that Castillo authorized Hitch to accept 17 process on his behalf.2 See National Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 313–315 18 (1964) (an agent authorized “by appointment” is a person appointed by the defendant for the 19 purpose of receiving process on his or her behalf). Lastly, Robinson has not established that Hitch 20 is an agent authorized by law to accept service on behalf of Castillo. Here, there is no evidence 21 that Castillo has notice of the suit. This is insufficient service of process under Rule 4. See 22 Crowley v. Bannister, 734 F.3d 967, 975 (9th Cir. 2013) (Although “Rule 4 is a flexible rule that 23 should be liberally construed so long as a party receives sufficient notice of the complaint,” 24 neither “actual notice, nor simply naming the person in the caption of the complaint, will subject 25 defendants to personal jurisdiction if service was not made in substantial compliance with Rule 26 4.”) (internal quotation and citation omitted). 27
2 1 Rather than recommend to the district judge that Castillo be dismissed, the Court will 2 instead quash service sua sponte. See Stevens v. Security Pac. Nat’l Bank, 538 F.2d 1387, 1389 3 (9th Cir.1976) (the district court has discretion to dismiss an action or to quash service); Grundy 4 v. Skolnick, 2011 WL 1299614 (D. Nev. Mar. 31, 2011) (dismissing claims sua sponte under Rule 5 12(b)(5) for failure to serve). 6 Having decided to quash service, the next question is whether to extend the time to 7 accomplish service under Rule 4(m).
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1 UNITED STATES D ISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 Martrail Robinson, Case No. 2:21-cv-01646-ART-BNW
5 Plaintiff, Order 6 v.
7 Circa Resorts LLC, et al.,
8 Defendants.
9 10 I. Factual and Procedural Background 11 Robinson, Plaintiff, alleges in his complaint that he is a disabled veteran and utilizes a 12 service dog. While at Circa Resort’s swimming pool on May 16, 2021, Circa security guards 13 asked him to leave the premises. Robinson was told that the service dog bit a server. Robinson 14 contends that as he was exiting the premises, a Circa employee told him that the biting incident 15 had been fabricated to make Robinson leave the premises. 16 On May 25, 2021, Robinson went back to Circa and spoke to Castillo, one of the security 17 guards. Robinson asked Castillo to review the tape to see if the dog had in fact bitten anyone. 18 Robinson contends the tape was never reviewed and that it may have been destroyed. 19 The complaint, filed September 7, 2021, names two defendants, Circa and Castillo. It 20 includes several counts, including violations of the Americans with Disability Act. 21 Service of the complaint was executed on Defendants Circa and Castillo on November 1, 22 2021. ECF Nos. 7, 8. 23 In the instant motion, Circa appears on behalf of Castillo for the limited purpose of 24 quashing service on Castillo and/or dismissing the case against Castillo. ECF No. 15. Robinson 25 opposed, arguing that Circa cannot seek relief on Castillo’s behalf and that, in any event, service 26 on Castillo was proper. ECF No. 21. Circa replied at ECF No. 26, and Robinson filed a sur-reply 27 at ECF No. 27-1. 1 II. The Parties’ Positions 2 Circa argues that it can make a limited appearance and seek to quash service on Castillo 3 even if it is not appearing as counsel for Castillo. Circa does not develop this argument much, 4 although it cites to Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986), for the proposition that a 5 party can challenge service of process without formally appearing. 6 Next, Circa explains that service on Castillo was effectuated by serving the summons on 7 Susan Atkinson, who cannot accept service on behalf of Castillo unless Castillo authorized her to 8 accept service of process on his behalf. The same argument applies to Susan Hitch, on whose 9 behalf Susan Atkinson accepted service. 10 Circa also explains that Castillo is no longer working for Circa—and was not working for 11 it at the time the complaint was served. Further, as far as Circa knows, Castillo is not aware of 12 this lawsuit. Circa is intervening to avoid any prejudice it might suffer if a default is entered 13 against Castillo while Circa litigates the case on the merits. As a result, Circa moves to quash 14 service on Castillo and dismiss the action under Fed. R. Civ. P. 12(b)(5). 15 Robinson argues, on the one hand, that Circa cannot intervene on behalf of Castillo. In 16 this vein, he argues that Castillo has not consented to the representation by Circa’s counsel. On 17 the other hand, he appears to take the position that the Court should proceed as if Circa were 18 representing him. Lastly, Robinson argues that, under Nevada law, a party can only assert its own 19 rights and cannot raise the claims of a third party that is not before the court. According to 20 Robinson, Circa is intervening in the hopes that the case will be dismissed against Castillo and 21 that the statute of limitations will bar him from re-filing certain claims.1 22 As for service, Robinson’s counsel explains that he had been in communications with 23 Susan Hitch, Circa’s CFO, who implied that she could accept service on behalf of both Circa and 24 Castillo. Atkinson accepted service on Hitch’s behalf. This, in Robinson’s view, constitutes 25 proper service. In any event, to the extent there was an issue with service, Robinson contends it 26
27 1 The Court understands that Robinson takes a different position regarding the statute of limitations on certain claims 1 was only a technical defect. Thus, Robinson argues, given the flexibility of Fed. R. Civ. P. 4 and 2 the lack of any prejudice to Castillo, the motion should be denied. 3 III. Analysis 4 “[A] party generally must assert his own legal rights and interests.” Kowalski v. Tesmer, 5 543 U.S. 125, 129 (2004) (internal quotation omitted). Kowalski explains that this rule is not 6 absolute, but the decision does not analyze whether one party can seek relief for another party. 7 Here, Circa hardly developed the issue—citing only to Benny v. Pipes, 799 F.2d 489 (9th Cir. 8 1986), which fails to address whether Circa can invoke the rights of Castillo. Thus, the Court will 9 not permit Circa to seek relief on behalf of Castillo. 10 Nevertheless, Robinson failed to establish proper service on Castillo. As applicable here, 11 Fed. R. Civ. P. 4(e)(1) and 4(e)(2)(C) required Robinson to either follow state law or deliver a 12 copy of the summons and complaint to “an agent authorized by appointment or by law to receive 13 service of process.” Robinson—who bears the burden—has not demonstrated that either rule has 14 been satisfied. See Patel-Julson v. Paul Smith Las Vegas, Inc., No. 2:12-CV-01023-MMD, 2013 15 WL 1752897 * 2 (D. Nev. Apr. 23, 2013). First, he does not discuss whether service complies 16 with state law. In addition, he has not demonstrated that Castillo authorized Hitch to accept 17 process on his behalf.2 See National Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 313–315 18 (1964) (an agent authorized “by appointment” is a person appointed by the defendant for the 19 purpose of receiving process on his or her behalf). Lastly, Robinson has not established that Hitch 20 is an agent authorized by law to accept service on behalf of Castillo. Here, there is no evidence 21 that Castillo has notice of the suit. This is insufficient service of process under Rule 4. See 22 Crowley v. Bannister, 734 F.3d 967, 975 (9th Cir. 2013) (Although “Rule 4 is a flexible rule that 23 should be liberally construed so long as a party receives sufficient notice of the complaint,” 24 neither “actual notice, nor simply naming the person in the caption of the complaint, will subject 25 defendants to personal jurisdiction if service was not made in substantial compliance with Rule 26 4.”) (internal quotation and citation omitted). 27
2 1 Rather than recommend to the district judge that Castillo be dismissed, the Court will 2 instead quash service sua sponte. See Stevens v. Security Pac. Nat’l Bank, 538 F.2d 1387, 1389 3 (9th Cir.1976) (the district court has discretion to dismiss an action or to quash service); Grundy 4 v. Skolnick, 2011 WL 1299614 (D. Nev. Mar. 31, 2011) (dismissing claims sua sponte under Rule 5 12(b)(5) for failure to serve). 6 Having decided to quash service, the next question is whether to extend the time to 7 accomplish service under Rule 4(m). Rule 4(m) provides, “If a defendant is not served within 90 8 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff— 9 must dismiss the action without prejudice against that defendant or order that service be made 10 within a specified time.” Fed. R. Civ. P. 4(m). Courts have broad discretion to extend time for 11 service under Rule 4(m). Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir.2003). Rule 4(m) does 12 not tie the hands of the district court after the 90–day period has expired. Mann v. American 13 Airlines, 324 F.3d 1088, 1090 (9th Cir.2003). Rather, Rule 4(m) explicitly permits a district court 14 to grant an extension of time to serve the complaint. Id. 15 Considering the foregoing standards, the Court finds that an extension of time to 16 effectuate service is appropriate. Robinson shall have until December 28, 2022 to effectuate 17 service on Castillo. 18 IT IS THEREFORE ORDERED that Defendant Circa’s motion at ECF No. 15 is 19 DENIED. 20 IT IS FURTHER ORDERED that service of the summons and complaint on Defendant 21 Castillo is quashed under Federal Rule of Civil Procedure 12(b)(5). 22 IT IS FURTHER ORDERED that Robinson must serve Castillo no later than December 23 28, 2022. 24 25 DATED: November 28, 2022
26 BRENDA WEKSLER 27 UNITED STATES MAGISTRATE JUDGE