Smith v. Wilkie

Opinion

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

9 Cynthia C Smith, No. CV-20-08015-PCT-MTL

10 Plaintiff, ORDER

11 v.

12 Northern Arizona Veterans Affairs Healthcare System, 13 Defendant. 14 15 Before the Court is Plaintiff’s Motion for Time Exten[s]ion to Serve Process (Doc. 16 16), in which Plaintiff Cynthia C. Smith requests an unspecified time extension to 17 effectuate proper service of process on Defendant Northern Arizona Veterans Affairs 18 Healthcare System (“Northern Arizona VA”). 19 Plaintiff, pro se, filed this case on January 15, 2020. On April 16, 2020, the Court 20 ordered Plaintiff to show cause for her failure to serve Defendants Robert Wilkie, the 21 Department of Veterans Affairs, and the Northern Arizona VA. (Doc. 10.) The Court 22 specifically ordered Plaintiff to show cause why Defendant Northern Arizona VA should 23 not be dismissed for failure to complete the service required by Fed. R. Civ. P. 4(i). (Id.) 24 Plaintiff’s response (Doc. 12) did not address Defendants Robert Wilkie and the 25 Department of Veterans Affairs; the Court accordingly dismissed them without prejudice. 26 (Doc. 15.) The Court also ordered Plaintiff to file a motion to extend the time for service 27 on Defendant Northern Arizona VA within 14 days. The pending motion resulted. 28 Rule 4(m) of the Federal Rules of Civil Procedure requires a plaintiff to serve a 1 defendant within 90 days of filing a complaint. Further, Rule 4(i) describes specific 2 requirements for serving the United States and its agencies, corporations, officers, or 3 employees. If a defendant is not timely served, the court “must dismiss the action without 4 prejudice against that defendant or order that service be made within a specified time.” 5 Fed. R. Civ. P. 4(m). If the plaintiff shows good cause, “the court must extend the time for 6 service for an appropriate period.” Id. 7 The first issue is whether Plaintiff showed “good cause” for the improper service. 8 As noted, if a plaintiff shows good cause, the court “must” extend the time for service. Fed. 9 R. Civ. P. 4(m). In the Ninth Circuit, at “a minimum, ‘good cause’ means excusable 10 neglect.” Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991) (citing Hart v. United 11 States, 817 F.2d 78, 80–81 (9th Cir. 1987)). Plaintiff’s motion states only: 12 Your honor, today I humbly request a time extension to 13 serve the U.S. Attorney Office, in the District of Arizona. Agency’s attorney Alfred Steinmetz, usually served as 14 agency’s counsel (see Exhibit 1), I realize now, it has to be sent 15 to the U.S. Attorney [sic] Office. 16 (Doc. 16 at 1.) This does not provide good cause. As the Supreme Court has noted, 17 “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually 18 constitute ‘excusable’ neglect[.]” Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 19 507 U.S. 380, 392 (1993). The Court is therefore not required to extend the time for service. 20 Absent a showing of good cause, a district court has “broad” discretion to either 21 dismiss the case without prejudice or to permit an extension of time. Hearst v. West, 31 F. 22 App’x 366, 369 (9th Cir. 2002). The Ninth Circuit has declined to “articulate a specific test 23 that a court must apply in exercising its discretion under Rule 4(m),” noting “that, under 24 the terms of the rule, the court’s discretion is broad.” Gill v. Waikiki Lanai, Inc., 2011 WL 25 3648772, at *7 (D. Hawai’i Aug.18, 2011) (quoting In re Sheehan, 253 F.3d 507, 513 (9th 26 Cir. 2001)). 27 Plaintiff, as a pro se litigant, must comply with the Federal Rules of Civil Procedure 28 and all Court orders. See Jacobsen v. Filler, 790 F.2d 1362, 1364–65 (9th Cir. 1986). 1 || Nonetheless, Courts have “a duty to ensure that pro se litigants do not lose their right to a 2|| hearing on the merits of their claim due to ignorance of technical procedural requirements.” 3|| Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988); see also Borzeka v. 4|| Heckler, 739 F.2d 444, 447 n. 2 (9th Cir. 1984) (defective service of complaint by pro se 5 || litigant does not warrant dismissal). The Court also notes that, although Plaintiff's motion 6 || does not provide much detail, it appears that Plaintiff has attempted to determine the proper manner in which to serve Defendant Northern Arizona VA.' In light of these factors, the 8 || Court will exercise its discretion and provide Plaintiff with one final opportunity to 9|| effectuate proper service. 10 In so ruling, the Court emphasizes that it has now provided Plaintiff with multiple 11 || opportunities to serve Defendant Northern Arizona VA. This case has also been pending 12 || for nearly six months. The Court will not grant any additional extensions. The Court further 13} advises that it fully expects Plaintiff to familiarize herself and comply with all applicable 14]| rules and law, including but not limited to the Federal Rules of Civil Procedure, the Federal 15|| Rules of Evidence, and the Local Rules of Civil Procedure, for the duration of this case. || Accordingly, 17 IT IS ORDERED granting Plaintiff's Motion for Time Exten[s]ion to Serve || Process (Doc. 16). 19 IT IS FURTHER ORDERED that Plaintiff effectuate proper service on Defendant || Northern Arizona Veterans Affairs Healthcare System within 21 days of the date of this order. Failure to do so will result in dismissal of the case without prejudice. 22 Dated this 2nd day of July, 2020. Wichal T. Hburde Michael T. Liburdi 25 United States District Judge 26] 1A litigant “who proceeds pro se with full knowledge and understanding of the risks does so with no greater rights than a litigant represented by a lawyer, and the trial court is under 27 no obligation to ... assist and guide the pro se layman[.]” Jacobsen, 790 F.2d at 1365 n. 5 (citation omitted). The Court does not intend to assist Plaintiff or to indicate whether her 28 description of the anticipated method of service will be proper under the Federal Rules of Civil Procedure.

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