Hunter v. U.S. Corrections Transport

          REPORT & RECOMMENDATION

          James F. Metcalf, United States Magistrate Judge.

         For the reasons discussed hereinafter, the undersigned Magistrate Judge recommends the dismissal of Defendant Simmons based on Plaintiff's failure to timely effect service.

         Failure to Timely Serve - Plaintiff's First Amended Complaint (Doc. 21) was filed on May 14, 2018. The Court's service Order (Doc. 22) was entered on August 24, 2018. A review of the Court's file reflects that service on Defendant Simmons was returned unexecuted on November 8, 2018. (Doc. 24) 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 October 23, 2018.

         On December 11, 2018, the Court issued an Order to Show Cause (Doc. 30), giving Plaintiff 14 days to file a memorandum showing cause why Defendant Simmons should not be dismissed without prejudice for failure to effect timely service. Plaintiff has not responded.

         On December 26, 2018, Plaintiff filed a “Response to the Order” (Doc. 30) which has been construed as a response to the Motion to Dismiss (based on the statute of limitations) (Doc. 25) filed by Defendant U.S. Corrections Transport. The Court had issued an Order (Doc. 27) on December 7, 2018, setting December 20, 2018 as the deadline for a response to the Motion to Dismiss. That Response (Doc. 30) does not address Defendant Simmons, and specifically requests that the Court “decline the defendant's motion to dismiss, ” and makes no reference to service on defendant Simmons. The Response also complains about delays in obtaining legal supplies, but does not relate those conditions to his failure to timely complete service in this matter.

         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 (9^th 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).

         Plaintiff has not proffered, and the undersigned does not find, any good cause for Plaintiff's failure to timely complete service on Defendant Simmons. For example, Plaintiff has not shown that he has been diligent in taking, or even attempting to take, action to complete service on Simmons.

         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 (3^rd 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 (9^th 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 ...