Dutchover v. Moapa Band of Paiute Indians et al, No. 2:2019cv01905 - Document 19 (D. Nev. 2020)
Court Description: ORDER Granting in part and Denying in part 18 Motion to Extend Time re 17 Minute Order (Third Request). See Order for details. Signed by Magistrate Judge Brenda Weksler on 7/30/2020. (Copies have been distributed pursuant to the NEF - MR)
Download PDF
<![CDATA[
Dutchover v. Moapa Band of Paiute Indians et al Doc. 19 Case 2:19-cv-01905-KJD-BNW Document 19 18 Filed 07/30/20 07/28/20 Page 1 of 6 7 1 2 3 4 5 6 7 8 9 JENNY L. FOLEY, Ph.D., ESQ. Nevada Bar No. 9017 E-mail: jfoley@hkm.com MARTA D. KURSHUMOVA, ESQ. Nevada Bar No. 14728 E-mail: mkurshumova@hkm.com DANA SNIEGOCKI, ESQ. Nevada Bar No. 11715 E-mail: dsniegocki@hkm.com HKM EMPLOYMENT ATTORNEYS LLP 1785 East Sahara, Suite 300 Las Vegas, Nevada 89104 Tel: (702) 805-8340 Fax: (702) 920-8112 Attorneys for Plaintiff 10 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 11 12 13 EDDIE DUTCHOVER, an Individual, CASE NO.: 2:19-CV-01905-KLD-BNW Plaintiff, 14 15 vs. 16 MOAPA BAND OF PAIUTE INDIANS, MOAPA TRIBAL COUNCIL, AND MOAPA TRIBAL ENTERPRISES, collectively, "Moapa defendants”, VICKIE SIMMONS, TYLER SAMSON, GREGORY ANDERSON, URAL BEGAY, LESLIE BRADLEY, DARREN DEBODA, DELAINE BOW, SAMANTHA LEE, a Corporation, DOES 1-50, inclusive and ROE CORPORATIONS 1-50, inclusive, 17 18 19 20 21 22 PLAINTIFF’S MOTION FOR EXTENSION OF TIME FOR SERVICE (THIRD REQUEST) Defendants. 23 24 The Plaintiff Eddie Dutchover (“Mr. Dutchover”) by and through his attorneys of 25 record, the law firm of HKM Employment Attorneys LLP, hereby makes this Third Motion to 26 Extend Time for Service. 27 28 /// Page 1 of 7 Dockets.Justia.com Case 2:19-cv-01905-KJD-BNW Document 19 18 Filed 07/30/20 07/28/20 Page 2 of 6 7 1 REQUEST FOR ADDITIONAL TIME TO SERVE 2 FACTUAL AND PROCEDURAL HISTORY 3 4 5 6 7 8 9 10 11 12 13 On or about February 4, 2020, Plaintiff, in proper person, requested an extension of time to serve Defendants so that he could obtain legal counsel to assist him with the matter [ECF 5]. The Court granted that Motion [ECF 6]. Since that time, Plaintiff diligently sought counsel, and HKM Employment Attorneys LLP appeared on Plaintiff’s behalf on or about May 5, 2020. On May 11, 2020, the Court issued an Order to Show Cause on why the Plaintiff’s Complaint should not be dismissed for failure to serve. [ECF 9]. On May 20, 2020, Plaintiff, through his counsel, responded to the Court’s Order to Show Cause and contemporaneously filed a Motion for Extension of Time for Service [ECF 12 and ECF 14]. 14 Plaintiff’s Response to the Order to Show Cause and simultaneous Motion for an 15 Extension of Time for Service requested additional time to effectuate service due to the 16 17 18 19 complications of entering Tribal lands to personally serve the Defendant Tribe and the individual Defendants. See, ECF 12 and 14. On May 29, 2020, the Court granted Plaintiff’s Motion for Extension of Time for Service and provided Plaintiff with an extension until June 20 29, 2020 to serve his Complaint. [ECF 15]. On June 29, 2020, Plaintiff filed his Second Motion 21 for Extension of Time for Service [ECF 16]. Via Minute Order on July 1, 2020 [ECF 17], the 22 Court granted Plaintiff’s Second Motion for Extension of Time for Service. 23 24 25 26 27 In the interim period since the Court’s May 29, 2020 Order granting an extension of time to serve and the making of this motion, Plaintiff and his counsel have diligently attempted to effectuate service on the Defendants. Plaintiff has timely obtained declarations of attempted service from its process server, Legal Wings, for each of its requested extension which 28 Page 2 of 7 Case 2:19-cv-01905-KJD-BNW Document 19 18 Filed 07/30/20 07/28/20 Page 3 of 6 7 1 demonstrate numerous and diligent attempts to properly serve Defendants, to no avail. See, 2 ECF 16 at Exhibits “1” through “11,” Declarations of Attempted Service on Defendants, Moapa 3 4 5 6 Band of Paiute Indians, Moapa Tribal Council, Moapa Tribal Enterprises, Vickie Simmons, Tyler Samson, Gregory Anderson, Ural Begay, Leslie Bradley, Darren Deboda, Delaine Bow, and Samantha Lee, respectively. 7 Also, in the interim period since the Court’s May 29, 2020 Order and the filing of this 8 Motion, the Plaintiff himself attempted entry onto the Tribal land to secure information about 9 how the Complaint may be served. Plaintiff was told only members of the Tribe with 10 11 12 identification verifying the same were permitted onto the land during the current COVID-19 pandemic lockdown. See, ECF 16 at Exhibit “12,” Declaration of Plaintiff, Eddie Dutchover. 13 Since the Court’s most recent order on July 1, 2020, Plaintiff and his counsel have 14 remained diligent regarding their duties to serve the Defendants. Attached hereto at Exhibits 15 “1” through “11” are Affidavits of Attempted Service on each of the Defendants showing 16 Plaintiff’s further attempts, since July 1, 2020, to effectuate service on the Defendants. 17 18 19 ARGUMENT I. GOOD CAUSE EXISTS TO EXTEND PLAINTIFFS’ TIME TO SERVE 20 Rule 4(m) of the Federal Rules of Civil Procedure governs extension of time to serve 21 complaints. “Rule 4(m) requires a two-step analysis in deciding whether or not to extend the 22 prescribed time period for the service of a complaint. In re Sheehan, 253 F.3d 507, 512 (9th 23 24 25 26 27 Cir. 2001), citinig Fed.R.Civ.P. 4(m); 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. 28 Page 3 of 7 Case 2:19-cv-01905-KJD-BNW Document 19 18 Filed 07/30/20 07/28/20 Page 4 of 6 7 1 “We have recognized that ‘[a]t a minimum, ‘good cause’ means excusable neglect.’” 2 Id., citing Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir.1991). Boudette v. Barnette, 923 3 4 5 6 7 F.2d 754, 756 (9th Cir.1991). “In Boudette, we stated that a plaintiff may be required to show the following factors in order to bring the excuse to the level of good cause: ‘(a) the party to be served received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.’” Id. 8 On May 19, 2020, Plaintiff’s counsel reached out to counsel for Defendant requesting 9 that he accept service of the Complaint and First Amended Complaint due to the current 10 11 12 lockdown situation of the Tribal lands. See, ECF 16 at Ex. “13,” email thread from Jenny Foley, Esq. to Brian Chestnut, Esq. On May 20, 2020, Defendants’ counsel responded that he could 13 not accept service. Id. On May 26, 2020 Plaintiff’s counsel again contacted Mr. Chestnut 14 inquiring about an alternative address at which to serve Defendants in light of the current 15 COVID-19 lockdown. Id. Mr. Chestnut did not respond to such email inquiry. Based upon 16 17 18 19 the foregoing, it is clear that the Defendants have received actual notice of the lawsuit. Further, there is no indication that Defendants would be prejudiced in any way by an extension of the deadline to serve. Such impediments to serving the Complaint have resulted not from a lack of 20 diligence on the part of the Plaintiff, but rather from a closing of the Tribal lands by the 21 Defendants, understandably so, due to the COVD-19 pandemic situation. Granting an extension 22 of the deadline to serve would maintain the status quo, even the playing field between the 23 24 25 26 27 Plaintiff and Defendants, and allow the Plaintiff’s claims to be fully litigated on their merits. Dismissing Plaintiff’s Complaint, on the other hand, would only serve to punish Plaintiff who has remained diligent throughout the course of this case. Plaintiff should not be prejudiced by the dismissal of his complaint due solely to an unavoidable procedural infirmity. 28 Page 4 of 7 Case 2:19-cv-01905-KJD-BNW Document 19 18 Filed 07/30/20 07/28/20 Page 5 of 6 7 1 Plaintiff submits that in light of the continuing COVID-19 pandemic, including the 2 recent resurgence of the same in Nevada, the subsequent closure of the reservation to all but 3 4 5 6 tribal members, and Plaintiff’s documented good-faith efforts to effectuate service, including process server attempts, Plaintiff’s own attempt to gather information relevant to effectuating service, and Plaintiff’s counsel’s efforts to secure Defendants’ counsel’s consent to accept 7 service of the Complaint, good cause exists to extend the time for service. Based upon the 8 repeated, unsuccessful attempts of the Plaintiff to serve his Complaint over the course of the 9 past two months, and the fact that there remains uncertainty regarding any imminent opening 10 11 12 of the tribal lands, Plaintiff respectfully requests an additional sixty (60) days to effectuate service in this matter. Plaintiff further requests that in lieu of a potential Fourth Motion for 13 Extension of Time for Service, the Court agree to allow Plaintiff to submit a status report at the 14 conclusion of the sixty (60) day period which will inform the Court of any additional efforts 15 made to effectuate service. Plaintiff submits such status report, in lieu of a motion, would 16 17 18 19 conserve the Court’s and the Plaintiff’s resources and provides a sufficient alternative which will allow the Plaintiff to keep the Court informed of the status of service while the pandemic lockdown continues for the foreseeable future. Plaintiff will continue his endeavors to properly 20 effectuate service during the interim period. 21 /// 22 /// 23 24 25 26 27 /// /// /// /// 28 Page 5 of 7 Case 2:19-cv-01905-KJD-BNW Document 19 18 Filed 07/30/20 07/28/20 Page 6 of 6 7 CONCLUSION 1 2 3 4 5 6 For all of the foregoing reasons, Plaintiff respectfully requests the Court grant a sixty (60) day extension of time to serve the Defendants in the matter and allow plaintiff to submit a status report in sixty (60) days’ time if service cannot be effectuated in the interim. Dated: July 28, 2020. 7 Respectfully submitted, 8 HKM EMPLOYMENT ATTORNEYS, LLP 9 By:/s/ Jenny L. Foley JENNY L. FOLEY, Ph.D., ESQ. Nevada Bar No. 9017 E-mail: jfoley@hkm.com MARTA D. KURSHUMOVA, ESQ. Nevada Bar No. 14728 E-mail: mkurshumova@hkm.com DANA SNIEGOCKI, ESQ. Nevada Bar No. 11715 E-mail: dsniegocki@hkm.com 1785 East Sahara, Suite 300 Las Vegas, Nevada 89104 Tel: (702) 805-8340 Fax: (702) 920-8112 Attorneys for Plaintiff 10 11 12 13 14 15 16 17 18 19 20 21 22 Plaintiff's motion is GRANTED in part and DENIED in part. The motion is GRANTED insofar as the deadline to effect service is extended an additional 60 days. The motion is DENIED with respect to plaintiff's request to file a joint status report if service cannot be completed within the enlarged period. Although the Court finds that there exists good cause for the extension, the Court encourages plaintiff to consider whether other means of service might be reasonably calculated to provide defendants with notice and an opportunity to respond. 23 24 25 26 27 28 IT IS SO ORDERED DATED: 5:41 pm, July 30, 2020 _________________________________ BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE Page 6 of 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
