United States District Court, D. Arizona
Terry D. Day, Plaintiff
Charles L. Ryan, et al., Defendants.
REPORT & RECOMMENDATION RE DISMISSAL OF
F. Metcalf United States Magistrate Judge
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.
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.
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.
Plaintiff has failed to respond to the Court's Order to
of Law to Facts -
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
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). "[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).
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 ...