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Sebert v. Arizona Department of Corrections

United States District Court, D. Arizona

November 15, 2016

Seth W Sebert, et al., Plaintiffs,
v.
Arizona Department of Corrections, et al., Defendants.

          REPORT AND RECOMMENDATION

          Eileen S. Willett, United States Magistrate Judge

         Pending before the Court is the Court's Order (Doc. 94) and Putative Defendants Moody and O'Neil's Motion to Quash Service (Doc. 95). The parties have responded to the Court's order to show cause, and Putative Defendants' Motion to Quash Service is fully briefed and deemed submitted for decision. The determination of the undersigned is dispositive of some of Plaintiff's claims. Accordingly, the undersigned makes the following Report and Recommendation pursuant to Rule 72(b), Federal Rules of Civil Procedure and 28 U.S.C.§ 636(b)(1)(B) and (C).

         I. DISCUSSION

         On September 30, 2016, the Court issued an Order (Doc. 94) requiring the Plaintiff to show cause (i) why the Court should not dismiss Defendants Moody and O'Neil from the action for Plaintiff's failure to prosecute pursuant to Rule 41(b), Fed. R. Civ. P., and (2) why the Court should not dismiss Defendant's Corizon, LLC and Corizon Health of New Jersey, LLC from the action for Plaintiff's failure to serve pursuant to Rule 4(m), Fed.R.Civ.P. and Rule 16.2(b)(2)(B)(ii) of the Local Rules of Civil Procedure. Plaintiff responded (Doc. 97) and State Defendants and Putative Defendants Moody and O'Neil replied and objected (Doc. 98).

         Plaintiff agrees that Defendants Corizon LLC and Corizon Health of New Jersey, LLC should be dismissed from this action without prejudice. The Magistrate Judge will recommend dismissal of Defendants Corizon LLC and Corizon Health of New Jersey, LLC from this action without prejudice.

         The Plaintiff objects to dismissal of all claims regarding Defendants Moody and O'Neil because Plaintiff believes these Defendants were properly served and have appeared as “State Defendants” in the Motion to Dismiss (Doc. 13). As the Motion to Dismiss has been fully briefed, the Plaintiff asserts that she has prosecuted her case as to Defendants Moody and O'Neil. However, putative Defendants Moody and O'Neil have filed a Motion to Quash Service (Doc. 95), which asserts that Defendants Moody and O'Neil were never properly served. In addition, putative Defendants argue that Plaintiff's belief that Defendants Moody and O'Neil have appeared through State Defendants' Motion to Dismiss (Doc. 13) is incorrect and unsupported by the record. The Magistrate Judge agrees.

         In State Defendants' Motion to Dismiss (Doc. 13 at 1), defense counsel clearly defines “State Defendants” as “[t]he Arizona Department of Corrections (‘ADC'), State of Arizona, and ADC Director Charles Ryan (collectively the ‘State Defendants') . . . .” Defendants Moody and O'Neil are not mentioned in the Motion. Furthermore, the Magistrate Judge notes that Defendant Villavicencio filed his own Motion to Dismiss and Joinder with the State Defendants' Motion to Dismiss. (Doc. 14). Defendants Moody and O'Neil did not appear as a State Defendant, nor did they file their own motion to dismiss. Plaintiff's erroneous belief that they were included in State Defendants' Motion to Dismiss is not supported by the record.

         Putative Defendants Moody and O'Neil further argue in their Motion to Quash Service (Doc. 95 at 2-4) that they were not properly served with Plaintiff's Second Amended Complaint. A review of the docket reflects that Affidavits of Service by a Private Process Server (Docs. 80-81) were filed reflecting that service of process as to Defendants Moody and O'Neil was effectuated on May 16, 2016 by delivering the summons and Second Amended Complaint to a female adult working in the Attorney General's office located at 1275 W. Washington Street, Phoenix, AZ. Defendants Moody and O'Neil are alleged to be employees of the Arizona Department of Corrections (the “ADC”), not the Office of the Attorney General. Though the Attorney General represents the ADC, no waiver of service was filed as to either Defendant Moody or O'Neil by counsel for the ADC. Therefore, personal service upon Defendants Moody and O'Neil is required pursuant to Rule 4(e), Fed.R.Civ.P. The Magistrate Judge finds that Plaintiff has not effectuated service of process as to Defendants Moody and O'Neil in substantial compliance with Rule 4(e), Fed.R.Civ.P. and Rule 4.1(d), Ariz. R. Civ. P. Defendants Moody and O'Neil were never served with the original Complaint or Amended Complaint, therefore service on defense counsel of the Second Amended Complaint pursuant to Rule 5(b), Fed. R. Civ. P., is not appropriate as urged by Plaintiff. Nor does service on ADC as an entity constitute personal service on Defendants Moody and O'Neil as individuals. The Magistrate Judge will recommend that the Motion to Quash (Doc. 95) be granted.

         The Magistrate Judge further finds that the time within which service was required to occur has expired. See Rule 4(m), Fed. R. Civ. P.; Order (Doc. 12). “Rule 4(m) . . . requires a district court to grant an extension of time when the plaintiff shows good cause for the delay. Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007) (citing Mann v. Am. Airlines, 324 F.3d 1088, 1090 n.2 (9th Cir. 2003)). In the absence of good cause, the Court in its discretion may grant an extension of time for service; “[h]owever, no court has ruled that the discretion is limitless.” Id. at 1041. The Court may consider such factors as “a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.” Id. (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998)).

         Plaintiff urges the Court to accept service of process upon the Attorney General's office for Defendants Moody and O'Neil on the basis of an email dated May 12, 2016 from defense counsel which states in pertinent part: “First, I appreciate that your office respects the security implications at stake when it comes to service of process on law enforcement officials. I am thankful that you chose to list only the Attorney General address for most of these officials, for example . . . . [P]lease do not have any process server look up and show up to an ADC official's personal residence. That step would require disclosing the address to a private process server. Unlike federal marshalls [sic] and county sheriff employees, private process servers are not always vetted for security.” (Doc. 99-2 at 2). Read in context with filings appearing on the docket, the Magistrate Judge notes each summons for Defendants Moody and O'Neil listed for an address the Attorney General's Office. (Docs. 69-70). From the above email, Plaintiff concluded that defense counsel accepted service of process for Defendants Moody and O'Neil at the Office of the Attorney General. However, this conclusion is directly contradicted by Plaintiff's acknowledgment that, although requested, “[a]cceptances and waivers were not given.” (Doc. 99 at 3). Plaintiff alternatively moves for an order granting an enlargement of time for service should the Motion to Quash be granted. However, Plaintiff has not set forth good cause for an extension of time to serve Defendants Moody and O'Neil pursuant to Rule 4(m), Fed. R. Civ. P.

         The Magistrate Judge next considers whether in its discretion such an extension of time should nevertheless be granted. Here, actual notice of the lawsuit has been given. In addition, there is no indication in the record that Defendants Moody and O'Neil are no longer employed by ADC. Service therefore could be accomplished at their place of employment, if not their residences. A Rule 16 Scheduling Conference has not been set due to the filing of dispositive motions by the Defendants who have appeared. Therefore, prejudice to Defendants Moody and O'Neil for this six month delay in service is not great. Plaintiff's counsel's confusion over service of process as explained is sincere. The Magistrate Judge will recommend that the Court, in its discretion, grant Plaintiff an extension of time of sixty (60) days from the filing of this Order to effectuate service of process upon Defendants Moody and O'Neil.

         Even assuming arguendo that Plaintiff properly served Defendants Moody and O'Neil on May 16, 2016, Plaintiff has not shown good cause for failing to prosecute her case against them. Defendants Moody and O'Neil did not answer or otherwise respond to Plaintiff's Second Amended Complaint. The time to do so has long since passed. Plaintiff did nothing to move her case against Defendants Moody and O'Neil forward to conclusion.

         A federal district court has the inherent power to dismiss a case sua sponte for failure to prosecute. Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962); Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995). In appropriate circumstances, the Court may dismiss a complaint for failure to prosecute even without notice or hearing. Id. at 633. In determining whether Plaintiff's failure to prosecute warrants dismissal of the case against Defendants Moody and O'Neil, the Court must weigh the following five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The first two of these factors favor the imposition of sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990).

         A. Factors One and Two: Public's Interest in Expeditious Resolution of Litigation and the ...


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