United States District Court, D. Arizona
REPORT AND RECOMMENDATION RE
DISMISSAL OF DEFENDANT FOR FAILURE TO
SERVE FAILURE TO TIMELY SERVE
F. METCALF UNITED STATES MAGISTRATE JUDGE
to timely serve - In its Order filed February 2, 2018 (Doc.
56), the Court ordered Plaintiff to file a memorandum showing
cause why Defendant Nurse Unknown Black should not be
dismissed without prejudice for failure to effect service.
Rule of Civil Procedure 4(m) provides:
If a defendant is not served within 120 days after the
complaint is filed, the court--on motion or on its own after
notice to the plaintiff-must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Civil Rule 16.2(b)(2)(B), which governs prisoner civil rights
suits, provides that service shall be completed by the
“maximum date to effect service, pursuant to Rule 4 of
the Federal Rules of Civil Procedure, or sixty (60) days from
filing of service order, whichever is later.”
Plaintiff's Second Amended Complaint (Doc. 21) was filed
on August 10, 2017. The Court's service Order (Doc. 31)
was entered on October 31, 2017. Under the foregoing rules,
service in this matter should have been completed by January
has not responded to the Court's Order, moved to
substitute the true name of this fictitiously named
defendant, nor taken any identifiable steps towards service
on such defendant.
of Law to Facts - Dismissal of a party is
appropriate where a plaintiff fails to show good cause for
delays in service. See Walker v. Sumner, 14 F.3d
1415 (9th Cir. 1994) (upholding dismissal where no
showing of good cause for delay in service).
At a minimum, "good cause" means excusable neglect.
A plaintiff may also be required to show the following: (a)
the party to be served personally received actual notice of
the lawsuit; (b) the defendant would suffer no prejudice; and
(c) plaintiff would be severely prejudiced if his complaint
Boudette v. Barnette, 923 F.2d 754, 756 (9th
Rule 4(m), where "good cause does not exist, the court
may in its discretion decide whether to dismiss the case
without prejudice or extend time for service."
Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298,
1305 (3rd Cir. 1995).
has proffered no good cause to extend the time for service on
good cause is not established, the district court may extend
time for service upon a showing of excusable neglect."
Lemoge v. U.S., 587 F.3d 1188, 1198 (9th
Cir. 2009). To determine whether a plaintiff demonstrates
excusable neglect, courts use the test set forth in
Pioneer Inv. Services Co. v. Brunswick Assoc. Ltd.,
507 U.S. 380, 394 (1993), and Briones v. Riviera Hotel
& Casino, 116 F.3d 379, 381 (9th Cir.1997). See
Lemoge, 587 F.3d at 1198 (holding that plaintiff had
established excusable neglect for the purposes of Rule 4(m)
via the Pioneer-Briones test). The
Pioneer-Briones test is as follows:
[T]he determination of whether neglect is excusable is an
equitable one that depends on at least four factors: (1) the
danger of prejudice to the opposing party; (2) the length of
the delay and its potential impact on the proceedings, (3)
the reason for the delay; and (4) whether the movant acted in
Bateman v. U.S. Postal Service, 231 F.3d 1220,
1223-1224 (9th Cir.2000). Here, all but the last factor call
for a finding of ...