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Solis v. Movers
United States District Court, D. Arizona
October 24, 2018
Karla Solis, Plaintiff,
Arizona Movers and Storage Incorporated, et al., Defendants.
A. Teilborg Senior United States District Judge.
before the Court is Plaintiff's motion for extension of
time to serve Defendant Hashem Abouzeid. (Doc. 22). Two
fact-based tests control when this Court either must, or may,
permit an extension of time to serve. See Trueman v.
Johnson, 2011 WL 6721327. In her motion, Plaintiff
neither cites, nor applies, either test.
There are “two avenues for relief[ ]” under Rule
4(m). Lemoge v. United States, 587 F.3d 1188, 1198
(9th Cir.2009). “The first is mandatory[.]”
Id. (citation and footnote omitted). Based upon the
plain language of that Rule, “the district court must
extend time for service upon a showing of good cause.”
Id. (citation and footnote omitted). “The
second is discretionary [.]” Id. (citation
omitted). Notwithstanding Rule 4(m), “if good cause is
not established, the district court may extend time for
service upon a showing of excusable neglect.”
Id. (citation omitted). Engaging in the
“two-step analysis” which the Ninth Circuit
“requires[, ]” the court will first consider
whether on this record there is good cause, thus mandating an
extension of time for service under Rule 4(m). See In re
Sheehan, 253 F.3d at 512. Courts must determine whether
good cause “has been shown on a case by case
basis.” Id. (citation omitted).
I. Mandatory Extension of Time
“Good cause to avoid dismissal may be demonstrated by
establishing, at minimum, excusable neglect.”
Lemoge, 587 F.3d at 1198, n. 3 (citation omitted)
(emphasis added). For the moment, the court will assume
arguendo the existence of excusable neglect. Based
upon that assumption, now it will address the other factors
“a plaintiff may be required to show ... to bring the
excuse to the level of good cause:
(1) the party to be served personally received actual notice
of the lawsuit; () the defendant would suffer no
prejudice; and () plaintiff would be severely prejudiced
if his complaint were dismissed.
Lemoge, 587 F.3d at 1198.
II. Discretionary Extension of Time to
In the absence of good cause, the court must proceed to the
second step of the analysis, and decide whether, in its
discretion, to extend the prescribed time for service of the
FAC. “The Ninth Circuit has declined to
“articulate a specific test that a court must apply in
exercising its discretion under Rule 4(m)[, ]” noting
“that, under the terms of the rule, the court's
discretion is broad .” Gill v. Waikiki Lanai,
Inc., 2011 WL 3648772, at *7 (D.Hawai'i Aug.18,
2011) (quoting In re Sheehan, 253 F.3d at 513
(citation omitted)). In part, that broad discretion derives
from the fact that Rule 4(m)'s -day time frame for
service “operates not as an outer limit subject to
reduction, but as an irreducible allowance.”
Henderson v. United States, 517 U.S. 654, 661, 116
S.Ct. 1638, 134 L.Ed.2d 880 (1996) (internal quotation marks
and citation omitted). “On its face, Rule 4(m) does not
tie the hands of the district court after the -day period
has expired. Rather, Rule 4(m) explicitly permits a district
court to grant an extension of time to serve the complaint
after that -day period.” Efaw v.
Williams, 473 F.3d 1038, 1041 (9th Cir.2007) (quoting
Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th
Cir.2003) (emphasis added by Mann court)).
A court's discretion under Rule 4(m) is not
“limitless[, ]” however. Id. It must be
predicated upon a finding of excusable neglect. See
Lemoge, 587 F.3d at 1197 (citation omitted) (emphasis
added) (“[I]f good cause is not established, the
district court may extend time for service upon a
showing of excusable neglect.” ).
“To determine whether a party's failure to meet a
deadline constitutes ‘excusable neglect,' courts
must apply a four-factor equitable test[ ]” based upon
Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd.,
507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); and
Briones v. Riviera Hotel & Casino, 116 F.3d 379,
381 (9th Cir.1997). Ahanchian v. Xenon Pictures,
Inc., 624 F.3d 1253, 1261 (9th Cir.2010) (citations
omitted). Pioneer involved excusable neglect under
Federal Rule of Bankruptcy Procedure 9006(b), and
Briones involved a Rule 60(b) motion for relief from
judgment. The Ninth Circuit applies the
Pioneer/Briones factors in a variety of contexts,
though, including in deciding whether excusable neglect has
been shown under Rule 4(m). See Lemoge, 587 F.3d at
That four factor equitable test requires, at a minimum,
examination of: “(1) the danger of prejudice to the
opposing party; (2) the length of the delay and its potential
impact on judicial proceedings; (3) the reason for the delay;
and (4) whether the movant acted in good faith.”
Ahanchian, 624 F.3d at 1261 (citations omitted).
Those four enumerated factors are “not an exclusive
list[, ]” however. Lemoge, 587 F.3d at 1195
(internal quotation marks and citation omitted). “In
some circumstances, the prejudice a denial would cause to the
movant must also be considered, but it is not a fact that
must be assessed in each and every case.” S.E.C. v.
Platforms Wireless Int'l Corp., 617 F.3d 1072, 1092
(9th Cir.2010) (internal quotation marks and citation
omitted). Thus, “what sorts of neglect will be
considered ‘excusable' ... is at bottom an
equitable one, taking account of all relevant circumstances
surrounding the party's omission.”
Pioneer, 507 U.S. at 395. Mindful that “a
district court abuses its discretion if it does not consider
each of the four Pioneer factors separately[,
]” PLU Investments, 2011 WL 1376192, at *2
(citing, inter alia, Ahanchian, 624 F.3d at 1261),
this court will proceed in exactly that way. In so doing, the
court is keenly aware that while “balancing the
Pioneer/Briones factors[, ]” it “may not
apply per se rules.” See Ahanchian, 624 F.3d
at 1261 (citation omitted).
Trueman, No. CIV 09-2179-PHX-RCB, 2011 WL 6721327,
Plaintiffs motion, in its entity, states:
Pursuant to the Court's Order (Dkt 6) and F.R.Civ.P.
4(m), good cause exists to support this motion. Plaintiff
requests the extension as the process server has tried five
times to serve Defendant Hashem Abouzeid (Dkt. 17-7, Exhibit
F). Plaintiff plans to serve Defendant Hashem ...
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