Taylor v. United States

Opinion

GALLIAN WELKER & BECKSTROM, L.C. Michael I. Welker, SBN 7950 2 Travis N. Barrick, SBN 9257 3 Nathan E. Lawrence, SBN 15060 540 East St. Louis Avenue 4 ll Las Vegas, Nevada 89104 5 Telephone: 702-892-3500 Facsimile: 702-386-1946 6 nlawrence@vegascase.com 7 Attorneys for Plaintiff 8 DISTRICT OF NEVADA 10 '' || STERLING HARDISTY TAYLOR, an individual, Case No.: 2:22-cv-00435-APG-BNW

13 Plaintiff, PLAINTIFF’S MOTION TO EXTEND v. TIME TO SERVE UNITED STATES 15 ATTORNEY (on behalf of Defendant Se UNITED STATES DEPARTMENT OF 2 16 || AGRICULTURE, UNITED STATES UNITED STATES DEPARTMENT OF 17 FOREST SERVICE; an agency of the United AGRICULTURE, UNITED STATES States, and DOES I to X, inclusive; FOREST SERVICE) is || collectively, (First Request) 19 Defendants. 20 21 22 Pursuant to Fed. R. Civ. P. 4(m) and Local Rules LR JA 6-1 and LR 7-2, Plaintiff 23 STERLING HARDISTY TAYLOR (“Plaintiff or “Mr. Taylor”), by and through his attorneys 24 of the law firm of GALLIAN WELKER & BECKSTROM, L.C., hereby submits this Motion to Extend 25 Time to Serve the United States Attorney on behalf of Defendant UNITED STATES 26 } DEPARTMENT OF AGRICULTURE, UNITED STATES FOREST SERVICE 27 “USDA/USFS’”) (the “Motion”). This is Plaintiffs first such Motion. This Motion is based on 28 the papers and pleadings on file in this matter, the following Memorandum of Points and

1 Authorities, the attached Declaration of Nathan E. Lawrence, Esq., and any arguments from 2 counsel the Court may choose to hear on this matter. 3 4 DATED this 6" day of July 2022. 5 6 GALLIAN WELKER & B OM, L.C. [Ly CVA 8 LA Te Michadl I. Welker, SBN 7950 ° Travis N_Barrick,£ 6NGAST 10 Nathan E. Lawrence, SBN 15060 540 East St. Louis Avenue i Las Vegas, Nevada 89104 12 Telephone: 702-892-3500 3 Facsimile: 702-386-1946 =e nlawrence@vegascase.com 14 Attorneys for Plaintiff

19 Mr. Taylor filed his Complaint [ECF No. 1] on March 9, 2022, further to which, under 20 Fed. R. Civ. P. 4(m), service of process was required on Defendants on or before June 7, 2022. 21 As detailed more fully below and in the Declaration of Nathan E. Lawrence, Esq., attached hereto 22 Exhibit A (“Lawrence Decl.”), service was partially effected under the relevant provisions of 23 Fed. R. Civ. P. 4(i)(2), with said service being completed to both the United States Department 24 of Agriculture Office of General Counsel at 1400 Independence Avenue, SW, South Building, 25 Room 3311-S, Washington, D.C. 20250 on April 13, 2022; and to the US Forest Service Regional 26 Office for the Intermountain Region at the James V. Hansen Federal Building at 324 25" Street, 27 Ogden, Utah 84401 on April 21, 2022 [ECF No. 5]. As of the date of the instant Motion, service 28 has not yet been made to the United States Attorney for the District of Nevada in accordance with

1 Fed. R. Civ. P. 4(i), and the reasons for this lack of service are specifically enumerated below and 2 the Lawrence Declaration. Mr. Taylor urges that these reasons, involving the attempted murder 3 {and subsequent hospitalization and recuperation of Mr. Lawrence, Plaintiffs lead counsel, 4 reasonably constitute excusable neglect for the delay in both service and filing of the instant 5 Motion. Accordingly, Mr. Taylor respectfully requests this Court grant the Motion and enlarge 6 the time to effect service for an additional sixty (60) days (from the original deadline) until August 7 6, 2022. This is Plaintiff's first request for an extension of time to effect service of process. 8 9 Il. PROCEDURAL HISTORY and RELEVANT FACTS 10 l. On March 9, 2022, Plaintiff filed the Complaint in the instant matter [ECF No. 1]. il 2. Pursuant to Fed. R. Civ. P. 4(m), service is required on all named Defendants 12 within ninety (90) days after the Complaint is filed, which deadline is, therefore, June 7, 2022. 3 13 3. On March 10, 2022, the Court timely issued the Summons for Defendant 3% 14 || USDAVUSFS [ECF No. 4), 15 4. On March 15, 2022, Plaintiff delivered, by United States Postal Service Certified 16 Mail, a Request for Waiver of the Service of Summons to Mr. Mark G. Garrett, Esq., Office of 17 {the General Counsel for USDA/USFS, the office which had previously denied Plaintiffs 18 administrative tort claim under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (“FTCA”). 19 No response has been received to date. 20 5. On April 8, 2022, Plaintiff's lead counsel, Mr. Lawrence, was involved in a serious 21 motorcycle collision (the “Collision’’), being intentionally struck by a motor vehicle driven by an 22 intoxicated driver, who was subsequently arrested and charged with, inter alia, multiple counts 23 of attempt murder with a deadly weapon and driving under the influence resulting in substantial 24 bodily injury. See Lawrence Decl., Exhibits A-1 and A-2. 25 6. As a result of the Collision, Mr. Lawrence suffered substantial bodily injury 26 including three fractured vertebrae, a subarachnoid hemorrhage, and 17% skin loss (including 6% 27 full thickness skin loss / third-degree burns). 28

1 7. As a result of the described injuries, Mr. Lawrence was hospitalized from April 8, 2 2022, until April 24, 2022, and, over the course of the hospitalization and thereafter, underwent 3 seven surgeries, the last of which occurred on Friday, July 1, 2022. 4 8. Mr. Lawrence, during the hospitalization and the subsequent recuperative period 5 maintained all efforts to communicate with his law office and to timely manage his caseload, 6 including the instant matter, further to which efforts, service was effected on USDA/USFS, as an 7 agency of the United States. 8 9. On April 11, 2022, three days after the Collision and the date of his first surgery, 9 Mr. Lawrence did specifically communicate with his office regarding service in the instant matter, 10 but, as a result of the circumstances described, such communication was not sufficiently clear or 11 explicit with respect to service of the United States Attorney under Fed. R. Civ. P. 4(i). 12 10. As noted above, service was effected on USDA/USFS to both the United States 13 Department of Agriculture Office of General Counsel at 1400 Independence Avenue, SW, South 14 Building, Room 3311-S, Washington, D.C. 20250 on April 13, 2022; and to the US Forest Service 24 15 || Regional Office for the Intermountain Region at the James V. Hansen Federal Building at 324 16 25" Street, Ogden, Utah 84401 on April 21, 2022 [ECF No. 5]. 17 ll. Mr. Lawrence first returned to work at his office on June 7, 2022, coincidentally, 18 the deadline for service in the instant matter, ultimately not discovering the failure to serve the 19 United States Attorney until July 5, 2022. 20 21 Hil. LEGAL STANDARD 22 Under Fed. R. Civ. P. 4(4), governing serving the United States and its agencies, the 23 plaintiff must “deliver a copy of the summons and of the complaint to the United States attorney 24 for the district where the action is brought..., send a copy of each by registered or certified mail 25 the Attorney General of the United States at Washington, D.C., ... and also send a copy of the 26 summons and of the complaint by registered or certified mail to the agency.” Fed. R. Civ. P. 27 4G)(1)-(2). 28

I Under Fed. R. Civ. P. 4(m), “[i]f a defendant is not served within 90 days after the 2 complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss 3 the action without prejudice against that defendant or order that service be made within a specified 4 time. But if the plaintiff shows good cause for the failure, the court must extend the time for 5 service for an appropriate period.” Even “[i]f the serving party does not show good cause, the 6 court has discretion to extend time for service.” Deutsche Bank Nat'l Tr. Co. v. Suzannah R. 7 Noonan, IRA, LLC, No. 2:16-cv-02883-KJD-CWH, 2017 U.S. Dist. LEXIS 65949, at *2 (D. Nev. 8 May 1, 2017). A district court possesses the inherent power to control its own docket. Hamilton 9 Copper & Steel Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990); Olivia v. 10 Sullivan, 958 F.2d 272, 273 (9th Cir. 1992). i If additional time for any purpose is needed, the proper procedure is to present a request 12 for extension of time before the time fixed has expired. Canup v. Mississippi Val. Barge Line Co., 31 F.R.D. 282 (W.D. Pa. 1962). A timely filed request for extension of time must be granted 14 } upon a showing of good cause. Fed. R. Civ. P. 4(m). “Generally, good cause is equated with 15 diligence [... and] requires more than inadvertence or mistake of counsel. At a minimum, good 16 cause means excusable neglect.” Deutsche Bank Nat'l Tr. Co., No. 2:16-cv-02883-KJD-CWH, 17 at *2 (D. Nev. May 1, 2017). LR IA 6-1 additionally requires that a motion to extend time must 18 state the reasons for the extension requested and will not be granted if requested after the 19 expiration of the specified period unless the movant demonstrates that the failure to file the motion 20 before the deadline expired resulted because of excusable neglect. 21 23 Here, the Complaint [ECF No. 1] was filed on March 9, 2022, which, under Fed. R. Civ. 24 P. 4(m), sets a 90-day deadline for service on June 7, 2022. The summons to Defendant 25 ) USDA/USFS was timely issued by the Court the day after the Complaint was filed [ECF No. 4]. 26 ) Service, as required under Fed. R. Civ. P. 4(i)(2), was timely effected on USDA/USFS, as the 27 United States agency, to both the United States Department of Agriculture Office of General 28 Counsel at 1400 Independence Avenue, SW, South Building, Room 3311-S, Washington, D.C.

1 20250 on April 13, 2022; and to the US Forest Service Regional Office for the Intermountain 2 Region at the James V. Hansen Federal Building at 324 25" Street, Ogden, Utah 84401 on April 3 {21, 2022 [ECF No. 5]. Service to the United States Attorney, as required under Fed. R. Civ. P. 4 4()(1), was neglected in the process and in Mr. Lawrence’s absence from the office; however, 5 given the particular exigencies of the situation as developed following the Collision, all of which 6 Substantially affected Mr. Lawrence’s health and timely management of this case, Mr. Taylor 7 {hereby urges the Court to recognize that these circumstances fall well within the ambit of 8 “excusable neglect,” such that the Court should grant this Motion and extension of time. 9 Without unduly dramatizing the medical factors which affected Mr. Lawrence’s ability to 10 enable Plaintiffs timely service on the United States Attorney, it is noted again that Mr. Lawrence 11 was hospitalized and medicated for sixteen days prior to being released to his home on April 24, 12 2022. Following release from the hospital, Mr. Lawrence was housebound for over six weeks, gz 13 requiring, during much of that timeframe, extensive bandages to his arms and legs for the “road 14 }rash” injuries to his arms, legs, and hands, which had, at that time, been partially surgically 15 corrected. During the course of at-home recuperation, Mr. Lawrence also underwent additional 16 debridement and skin graft surgeries, with a final (hopefully!) surgery as recently as July 1, 2022. 17 As lead counsel for Plaintiff, it logically follows that Mr. Lawrence’s inability to maintain the 18 typical oversight of this case for medical reasons, which oversight directly led to the failure of i9 service of the United States Attorney, should properly be viewed by this Court as excusable 20 neglect. 21 Notwithstanding the evident delay in serving the United States Attorney, there is no 22 reasonable likelihood of any prejudice to the Defendant USDA/USFS in affording Mr. Taylor 23 more time to effect service, as this is the first request for extension of time to serve, and this 24 request is being submitted within a very short period of time (thirty (30) days) after the original 25 deadline to serve. Concurrent with this Motion, Mr. Lawrence will also effect service to the 26 United States Attorney (along with a copy of the instant Motion), such that the United States 27 Attorney will be served within a matter of days following this pleading and will then be fully 28 apprised of this litigation. Defendant USDA/USFS, as a result of the previously fulfilled

1 j administrative tort claim process under the FTCA, has been aware of Mr. Taylor’s claim since 2 December 21, 2020, and, further to the request for waiver, has been aware of this litigation since 3 March 15, 2022. No prejudice in defending this matter can reasonably be perceived on these 4 facts. Accordingly, an extension of time to finalize service is without harm, and should be granted 5 within this Court’s authority and discretion. 6 8 For the foregoing reasons, Plaintiff Sterling Hardisty Taylor hereby respectfully requests 9 this Court grant an additional sixty (60) days (from the original service deadline under Fed. R. 10 Civ. P. 4(m)) to effect service on the United States Attorney on behalf of Defendant United States 11 Department of Agriculture, United States Forest Service, enlarging the time to serve until August 12 6, 2022. 13 DATED this 6" day of July 2022. 14 GALLIAN Way R & BECKSTROM, L.C. ft 16 Cc) h{t— 17 oF Michael I. Welker, SBN 7980 Travis N. Barrick, SBN_9257 19 Nathan E. Lawrence, SBN 15060 540 East St. Louis Avenue Las Vegas, Nevada 89104 21 Telephone: 702-892-3500 Facsimile: 702-386-1946 nlawrence@vegascase.com 23 Attorneys for Plaintiff IT IS SO ORDERED DATED: 10:36 am, July 07, 2022 26 27 Gra Les Arba,