Douglas v. ATSI Ahtna Technical Services

          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. § 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 ...