United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE EILEEN S. WILLETT, UNITED STATES MAGISTRATE JUDGE.
TO
THE HONORABLE STEPHEN M. MCNAMEE, UNITED STATES DISTRICT
JUDGE
On
December 12, 2018, the Court issued an Order requiring the
Plaintiff to show cause no later than January 7, 2019 why her
case should not be dismissed pursuant to Fed.R.Civ.P. 4(m)
and 41(b) for failure to timely serve and prosecute (Doc. 7).
On January 8, 2019, Plaintiff filed a response to the
Court's Order from which the Court concludes that
Plaintiff has not timely effectuated service of process as
required by Fed.R.Civ.P. 4(c)(2) (stating a party may not
serve a summons and complaint). (Doc. 8). Though a Summons
has now issued from the Clerk of Court (Doc. 9), proof of
service has not been filed despite the Court's extension
of the ninety-day time limit to January 7, 2019. Plaintiff
has not requested, nor has good cause been shown, to extend
further the deadline for service of process.
I.
DISCUSSION
Under
Fed.R.Civ.P. 4(m), “[i]f 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.”
However, “if the plaintiff shows good cause for the
failure, the court must extend the time for service for an
appropriate period.” Id.
As the
Ninth Circuit Court of Appeals has explained, “Rule
4(m) requires a two-step analysis in deciding whether or not
to extend the prescribed time period for the service of a
complaint.” In re Sheehan, 253 F.3d 507, 512
(9th Cir. 2001) (citing Fed.R.Civ.P. 4(m) and Petrucelli
v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1305
(3d Cir. 1995)). “First, upon a showing of good cause
for the defective service, the court must extend the time
period. Second, if there is no good cause, the court has the
discretion to dismiss without prejudice or to extend the time
period.” Id. The Ninth Circuit has found it
“unnecessary, however, to articulate a specific test
that a court must apply in exercising its discretion under
Rule 4(m), ” noting “only that, under the terms
of the rule, the court's discretion is broad.”
Id. at 513. Yet “no court has ruled that the
discretion is limitless. In making extension decisions under
Rule 4(m) a district court may consider factors
‘like a statute of limitations bar, prejudice to the
defendant, actual notice of a lawsuit, and eventual
service.'” Efaw v. Williams, 473 F.3d
1038, 1041 (9th Cir. 2007) (emphasis added).
In this
case, the Complaint was filed on July 16, 2018 (Doc. 1).
Plaintiff filed no proof of service within the ninety-day
service period as required by Fed.R.Civ.P. 4(m). In its Order
of December 1, 2018, the Court extended time for service of
process to January 7, 2019, requiring the Plaintiff to show
cause why the case should not be dismissed if an Affidavit of
service were not filed by January 7, 2019 (Doc. 7). No
Affidavit of Service has been filed. Documentation reflects
that the Plaintiff herself mailed the Complaint directly to
the Defendant. Plaintiff has not served the Summons and
Complaint in accordance with Fed.R.Civ.P. 4 (c), (e), (h),
(1) and (m). Nor has she shown good cause for failing to do
so.
It is
not the Court's role to assist the Plaintiff in properly
serving the Defendant. See Bias v. Moynihan, 508
F.3d 1212, 1219 (9th Cir. 2007) (“A district court
lacks the power to act as a party's lawyer, even for
pro se litigants.”); Pliler v. Ford,
542 U.S. 225, 231 (2004) (federal “judges have no
obligation to act as counsel or paralegal to pro se
litigants”) (italics in original); Barnes v. United
States, 241 F.2d 252 (9th Cir. 1956) (noting pro se
litigant does not have rights that a represented litigant
does not have). Dismissal without prejudice is appropriate
under these circumstances. The undersigned recommends that
the Court dismiss Plaintiff's Complaint for failure to
timely serve pursuant to Fed.R.Civ.P. 4(m).
II.
CONCLUSION
For the
reasons set forth above, IT IS RECOMMENDED
that the Court dismiss without prejudice Plaintiff's
Complaint (Doc. 1) for failure to serve pursuant to
Fed.R.Civ.P. 4(m).
This
Report and Recommendation is not an order that is immediately
appealable to the Ninth Circuit Court of Appeals. Any notice
of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be
filed until entry of the District Court's judgment. The
parties shall have fourteen days from the date of service of
a copy of this recommendation within which to file specific
written objections with the Court. See 28 U.S.C.
ยง 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties
have fourteen days within which to file a response to the
objections. Failure to file timely objections to the
Magistrate Judge's Report and Recommendation may result
in the acceptance of the Report and Recommendation by the
District Court without further review. Failure to file timely
objections to any factual determinations of the Magistrate
Judge may be considered a waiver of a party's right to
appellate review of the ...