United States District Court, D. Arizona
G, Campbell Senior United States District Judge
Kevin Eric Pesqueira, who is represented by counsel, brought
this civil rights action pursuant to 42 U.S.C. § 1983.
Defendant Sedlar has filed a Motion to Dismiss, which
Plaintiff opposes. (Docs. 165, 174.) The Court will deny the
screening of Plaintiff's First Amended Complaint (Doc.
11) pursuant to 28 U.S.C. § 1915A(a), the Court
determined that Plaintiff stated Eighth Amendment medical
care claims against Defendants Nurse Sedlar and John Doe #1
arising from their alleged failure to treat Plaintiff's
injured right hand. (Doc. 12.) Plaintiff subsequently filed a
Notice to Substitute Defendant Lohr for John Doe #1, and
service was executed on Defendant Lohr on April 3, 2018.
(Docs. 86, 100.) Defendant Sedlar was served on November 7,
2018. (Docs. 162, 164.)
Sedlar moves to dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(2) and 12(b)(5) for lack of personal
jurisdiction and insufficient service of process, and, in the
alternative, for failure to prosecute pursuant to Rule 41(b).
Motion to Dismiss
Plaintiff filed his original Complaint, Rule 4(m) provided
that if a summons and complaint are not served on a defendant
within 120 days after filing, the court shall, after notice
to the plaintiff, either dismiss the action or, if the
plaintiff shows good cause for the failure, direct that
service be effected within a specified time. Fed.R.Civ.P.
(4)(m).The Ninth Circuit has explained that Rule
4(m) “requires a district court to grant an extension
of time when the plaintiff shows good cause for the
delay.” Efaw v. Williams, 473 F.3d 1038, 1040
(9th Cir. 2007) (internal citations omitted) (emphasis in
original). A plaintiff may demonstrate good cause by showing
that he made a reasonable and diligent effort to effect
service. See Electrical Specialty Co. v. Road & Ranch
Supply, Inc., 967 F.2d 309, 312 (9th Cir. 1992).
“Additionally, the rule permits the district court to
grant an extension even in the absence of good cause.”
Efaw, 473 F.3d at 1040 (internal citations omitted).
Courts should give Rule 4 a liberal and flexible
construction. See Borzeka v. Heckler, 739 F.2d 444,
447 (9th Cir. 1984). When determining whether an extension
for service is warranted, a district court should consider
factors such as prejudice to the defendant, actual notice of
a lawsuit, and eventual service. Efaw, 473 F.3d at
1041; see Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P'ship, 507 U.S. 380, 395 (1993) (factors to
consider in excusable-neglect determined include danger of
prejudice, length of delay, reason for delay, and whether
party acted in good faith).
Sedlar argues that the Court lacks personal jurisdiction over
her because she was not served until more than three years
after Plaintiff filed his original Complaint, and Plaintiff
failed to complete service within the time required in Rule
4(m). (Doc. 165 at 6-11.)
review of the docket shows that the Court found good cause to
grant Plaintiff, who was proceeding pro se at the time,
several extensions of the service deadline.
40, 46, 69, 80, 90, 133, 147.) Plaintiff was finally able to
serve Defendant Sedlar on November 7, 2018, and the Court
determined there was good cause to deem this service timely.
(Docs. 162, 163.) Thus, contrary to Defendant Sedlar's
argument, the Court has already found good cause to extend
the deadline. Courts must “be generally more solicitous
of the rights of pro se litigants, particularly when
technical jurisdictional requirements are involved.”
Borzeka, 739 F.2d at 448.
Sedlar asserts that she will be “greatly
prejudiced” by the delay in service because five years
have elapsed since Plaintiff's claim arose and “the
memories of all of the witnesses will have faded” and
“[b]oth evidence and witnesses have likely been
lost.” (Doc. 165 at 11.) These conclusory assertions
are insufficient to show that she will be unable to defend
against Plaintiff's claims. Accordingly, to the extent
Defendant Sedlar seeks dismissal based on improper service,
her Motion is denied.
Failure to Prosecute
argues that this matter should be dismissed pursuant to Rule
41(b) for Plaintiff's failure to prosecute based on his
failure “to diligently pursue service[.]” (Doc.
165 at 13.) Rule 41(b) allows the Court to dismiss an action
for failure to prosecute or failure to comply with court
orders. See Fed. R. Civ. P. 41(b); Hells Canyon
Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689
(9th Cir. 2005); Ferdik v. Bonzelet, 963 F.2d 1258,
1260 (9th Cir. 1992). Before dismissal on either of these
grounds, the Court must weigh “(1) the public's
interest in expeditious resolution of litigation; (2) the
court's need to manage its docket; (3) the risk of
prejudice to the defendants; (4) the public policy ...