The Independent Order of Foresters v. Carlson

Opinion

1 || Nicole G. True, Bar No. 12879 Nicole. True@wbd-us.com 2 || WOMBLE BOND DICKINSON (US) LLP 3 || 201 East Washington Street, Suite 1200 Phoenix, AZ 85004 4 || Tel: 602.262.5311 Fax: 602.262.5747 5 Local Office: 6 || 3993 Howard Hughes Parkway, Suite 600 7 Las Vegas, NV 89169 Tel: (702) 949-8200 8 Attorneys for Plaintiff 9 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 || The Independent Order of Foresters, Case No. 2:25-cv-00842 oO © 2 13 Plaintiff, PLAINTIFF’S UNOPPOSED MOTION TO 2 14] y EXTEND TIME TO SERVE DEFENDANT TIMOTHY JOHNSON D $ 13 |! Vincent Carlson, Timothy Johnson and Alectra 16 || Avilla, 17 Defendants.

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20 Pursuant to Fed. R. Civ. P. 4(m), Plaintiff The Independent Order of Foresters (“Plaintiff” a 5 21 || or “Foresters”), respectfully moves for an extension of time to serve Defendant Timothy Johnson a = 22 | (‘Johnson’). Counsel for Defendants Vincent Carlson and Alectra Avilla has confirmed it will = g 23 || not oppose this motion. 24 MEMORANDUM OF POINTS AND AUTHORITIES 25 1. INTRODUCTION 26 Plaintiff requests an additional 90 days to effect service on Defendant Timothy Johnson. 27 || There is good cause for the requested extension. Johnson is incarcerated at Lyons County Jail in 28 || Yerrington, Nevada, and has been throughout the entirety of the service period. Because of the

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1 || logistical difficulties and expense of serving an incarcerated person through a process server, 2 || Plaintiff first sought a waiver of service from Johnson via regular mail. It is unclear; however, 3 || whether he received that first request as there was no return receipt requested. 4 Plaintiff reattempted mailing the waiver of service to Johnson last week via certified mail. 5 || The jail has confirmed receipt of that service package. Due to the nature of the claims, □□□□□□□□□□□ 6 || counsel anticipates that Johnson will agree to waive service and voluntarily appear. Plaintiff 7 || intends to allow Johnson 30 days to return the waiver of service. If he does not return it, Plaintiff 8 || will move forward with in person service of process of Johnson in the jail. 9 Plaintiff accordingly moves to extend the time to effect service of process on Johnson 10 || under Fed. R. Civ. P. 4(m) by a period of 90 days. 11 Il. RELEVANT FACTUAL AND PROCEDURAL HISTORY

> 12 On May 15, 2025, Foresters filed its Complaint in Interpleader against Defendants 13 || Vincent Carlson (“Carlson”), Alectra Avilla (“Avilla”), and Johnson (ECF No. 1). 2 14 Summons were issued for the Defendants on May 15, 2025. (ECF Nos. 2 - 4). 8 15 On May 21, 2025, Plaintiffs counsel sent Defendants the Complaint, their respective 16 |} summons, and a letter requesting waiver of service; counsel sent these documents to Carlson and Z 17 }} Avilla via email and via regular mail to Johnson. Z 18 Carlson and Avilla waived service of the summons, which Foresters subsequently filed on a 19 || June 2, 2025. (ECF Nos. 7 - 8). 6 20 On July 28, 2025, Carlson and Avilla filed their Answers, by and through counsel, to = 21 || Foresters’ Complaint in Interpleader. (ECF No. 11). 22 As of the filing of this Motion, Plaintiff has not recerved a response from Johnson, and it 23 || is unclear whether he received the service packet as no return receipt was requested. 24 On August 12, 2025, Plaintiff resent Johnson the Complaint, Summons, and request to 25 || waive service via certified mail and marked the envelope “LEGAL MAIL” to ensure it was 26 || properly routed to Johnson. Plaintiff received confirmation on Monday, August 11, 2025 that the 27 || jail received the service package. 28 Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, the time for Plaintiff to 4930-1220-0286.1 -2-

1 || effectuate service of process on Johnson expires on August 13, 2025. Plaintiff requests an 2 || additional 90 days to either file a waiver of service or otherwise effect service of process on 3 || Johnson who is incarcerated. 4 I. LEGAL ARGUMENT 5 Under Rule 4(m) of the Federal Rules of Civil Procedure, “if the plaintiff shows good 6 || cause for the failure [to serve], the court must extend the time for service for an appropriate 7 || period.” Fed. R. Civ. P. 4(m). Good cause to avoid dismissal may be demonstrated by 8 || establishing, at minimum, excusable neglect. See Boudette v. Barnette, 923 F.2d 754, 756 (9th 9 || Cir. 1991). Put simply, plaintiffs who make “reasonable-efforts-to-effect service” should be 10 || permitted additional time, if necessary. See Arroyo v. Wheat, 102 F.R.D. 516, 518 (D. Nev. 11 || 1984). Nevertheless, District courts may exercise discretion to extend the service deadline “even

> 12 || in the absence of good cause.” Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007). 13 Plaintiffs failure to effectuate service on Johnson has been complicated by the fact that 2 14 he is incarcerated and must be served in compliance with the processes and restrictions of the 8 15 jail where he is incarcerated. These are precisely the types of external constraints that justify a 16 || finding of good cause to allow additional time for service. See,e.g. Puett v. Blandford, 912 F.2d Z 17 || 270, 275 (9th Cir. 1990) (reversing dismissal for lack of service due to incarcerated individual’s 18 || inability to serve defendant); see also Penton v. Pool, 724 Fed. App’x 546, 550 (9th Cir. 2018) a 19 || (reversing dismissal for lack of service because incarcerated plaintiff was erroneously given 6 20 || burden to locate a viable home address for a former prison officer who had left government = 21 || employment). 22 Given the nature of the claims, Plaintiff anticipated Johnson would waive service of 23 || process. Unfortunately, the initial waiver of service package was sent to Johnson without 24 || requiring a return receipt, so it is unclear whether Johnson ever received it. Plaintiff has since 25 || remedied this issue by resending the waiver of service package to the facility via certified mail. 26 || Plaintiff has already received confirmation that the jail received the waiver of service packet. If 27 || Johnson does not return the waiver of service within 30 days, Plaintiff will proceed with in 28 || person service of process. 4930-1220-0286.1 -3-

] As there is good cause to extend time for service, Plaintiff respectfully requests the 2 || Court allow it an additional 90 days to effect service on Johnson. 3 IV. CONCLUSION 4 Based on the foregoing, this Court should grant Plaintiff's Motion and enter an order 5 || allowing Plaintiff an additional 90 days’ time to serve Johnson. 6 RESPECTFULLY SUBMITTED this 13th day of August, 2025. 7 WOMBLE BOND DICKINSON (US) LLP 8 9 By: /s/Nicole G. True Nicole G. True, Bar No. 12879 10 Nicole. True@wbd-us.com 201 East Washington Street, Suite 1200 Phoenix, AZ 85004 12 Tel.: 602.262.5311 Fax: 602.262.5747 2 13 Attorneys for Plaintiff Zz 44 © 15 16 IT IS SO ORDERED: = 17 < <

é 18 UNITED STATES DISTRICT JUDGE O 19 a 6 Dated:_August 13, 2025 a = 21 = g 22 23 24 25 26 27 28 4930-1220-0286.1 -4-