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Day v. Ryan

United States District Court, D. Arizona

April 5, 2018

Terry D. Day, Plaintiff
v.
Charles L. Ryan, et al., Defendants.

          REPORT & RECOMMENDATION RE DISMISSAL OF DEFENDANT

          James F. Metcalf United States Magistrate Judge

         In its Order filed March 9, 2018 (Doc. 19), the Court ordered Plaintiff to file a memorandum showing cause why Defendant John Doe should not be dismissed without prejudice for failure to effect service and failure to timely file a a notice of substitution.

         Plaintiff's First Amended Complaint (Doc. 10) was filed on July 19, 2017. The Court's service Order (Doc. 11) was entered on December 12, 2017. A review of the Court's file reflects that service on Defendant John Doe has not been completed. Federal Rule of Civil Procedure 4(m) provides:

If a defendant is not served within 90 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.

         Local 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.” Under the foregoing rules, service in this matter should have been completed by February 12, 2018. 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). In addition, the Court's Service Order directed:

(4) Within 60 days from the filing date of this Order, Plaintiff must file a “Notice of Substitution” substituting Defendant John Doe with Defendant Doe's actual name. If Plaintiff fails to file a notice of substitution within 60 days, the Court will dismiss Defendant John Doe without prejudice.

(Order 12/12/17, Doc. 11 at 13.) To date, Plaintiff has not filed such a notice of substitution.

         Moreover, Plaintiff has failed to respond to the Court's Order to Show Cause.

         Application 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 were dismissed.

Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir.1991).

         Notwithstanding 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). "[I]f 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 ...


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