United States District Court, D. Arizona
REPORT & RECOMMENDATION
F. Metcalf, United States Magistrate Judge.
reasons discussed hereinafter, the undersigned Magistrate
Judge recommends the dismissal of Defendant Simmons based on
Plaintiff's failure to timely effect service.
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)
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 October 23, 2018.
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.
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
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
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.
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 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 ...