FOWLER
Filing
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ORDER Denying 18 Motion to Dismiss. Plaintiffs to file proof of service on Defendants Alford and Clark County within 10 days. Signed by Judge Kent J. Dawson on 4/27/10. (Copies have been distributed pursuant to the NEF - AXM)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 Defendants. 15 16 Presently before the Court is Defendants' Motion to Dismiss Complaint for Violation of 17 Federal Rule of Civil Procedure 4(m) (#18). Plaintiffs filed a response in opposition (#19) to which 18 Defendants replied (#23). 19 I. Background and Procedural History 20 On or about June 12, 2007, Denise Glasco was shot by two police officers employed by the 21 Las Vegas Metropolitan Police Department after the use of non-lethal force failed to stop her from 22 threatening officers and members of the public. On June 11, 2009, the instant Complaint, alleging 23 constitutional violations and several state law claims, was filed. On October 14, 2009, the Court 24 notified Plaintiffs that time for serving the complaint in compliance with Rule 4(m) had run. The 25 Court ordered Plaintiffs to file proof of timely service no later than October 28, 2009. 26 v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., BETTY FOWLER, et al., Plaintiffs, Case No. 2:09-CV-01062-KJD-LRL ORDER
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
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On October 27, 2009, Plaintiffs filed proof that the summons and complaint had been served on most defendants on October 15, 2009, six days past the October 9, 2009 Rule 4(m) deadline. Defendants then filed the present motion to dismiss for Plaintiffs' failure to timely serve the summons and complaint. II. Standard for Relief Under Rule 4(m) Rule 4(m) provides two avenues for relief. See Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). The first is mandatory: the district court must extend time for service upon a showing of good cause. In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001).1 The second is discretionary: if good cause is not established, the district court may extend time for service or dismiss without prejudice. Id. at 512, 514. In this case, even if the Court were to find that counsel for Plaintiffs has not established good cause, the Court may exercise its discretion to extend time to complete service when a statute-of-limitations bar would operate to prevent re-filing of the action, as it would in this instance. See Lemoge, 587 F.3d at 1198 (citing Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007); United States v. 2,164 Watches, 366 F.3d 767, 773(9th Cir. 2004)). Accordingly, the Court finds that the prejudice that would be suffered by Plaintiffs coupled with the mere six-day delay in timely serving the summons and complaint justify extending the time for service of the summons and complaint. Thus, the Court denies Defendants' motion to dismiss for untimely service. However, during the pendency of this motion, the Court ordered (#24) Plaintiffs to show cause why the action should not be dismissed against Defendants Clark County and Officer Alford, the only remaining unserved Defendants, for failure to timely serve them in compliance with Rule 4(m). Plaintiffs failed to respond. Accordingly, the complaint will be dismissed against these
G o o d cause to avoid dismissal may be demonstrated by establishing, at minimum, excusable neglect. See L e m o g e , 587 F.3d at 1198 n.3 (citing Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991)). In addition to excusable n e g l e c t , a plaintiff may be required to show the following factors to bring the excuse to the level of good cause: "(a) the p a r ty to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) p la in tiff would be severely prejudiced if his complaint were dismissed." Boudette, 923 F.2d at 756.
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defendants unless Plaintiffs can demonstrate within ten (10) days of the entry of this order that they served Alford and Clark County no later than November 14, 2009. III. Conclusion Accordingly, IT IS HEREBY ORDERED that Defendants' Motion to Dismiss Complaint for Violation of Federal Rule of Civil Procedure 4(m) (#18) is DENIED; IT IS FURTHER ORDERED that Plaintiffs file proof of service on Defendants Alford and Clark County within ten (10) days of the entry of this order. DATED this 27th day of April 2010.
_____________________________ Kent J. Dawson United States District Judge
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