Vandecar v. Daniels et al, No. 2:2020cv02150 - Document 77 (D. Nev. 2023)
Court Description: ORDER GRANTING ECF No. 75 Motion to Extend Time to serve Defendant Edison Rojas. Proof of service due by 4/28/2023. Signed by Magistrate Judge Brenda Weksler on 3/29/2023. (Copies have been distributed pursuant to the NEF - DLS)
Download PDF
<![CDATA[
Vandecar v. Daniels et al Doc. 77 Case 2:20-cv-02150-ART-BNW Document 77 75 Filed 03/29/23 03/28/23 Page 1 of 6 1 ANDRÉA L. VIEIRA, ESQ. Nevada Bar No. 15667 2 THE VIEIRA FIRM th 3 400 S. 7 St., Ste. 400 Las Vegas, Nevada 89101 4 Telephone: (702) 820-5853 Facsimile: (702) 820-5836 5 Andrea@TheVieiraFirm.com 6 Court Appointed Pro Bono Attorney for Plaintiff 7 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 8 9 ROSEMARY VANDECAR, an Individual; 10 Plaintiff, CASE NO.: 2:20-cv-02150-ART-BNW A law firm dedicated to Civil Rights and Social Justice 11 vs. 12 HAROLD WICKHAM, an Individual; GABRIELA GARCIA-NAJERA, an Individual; RONALD 13 OLIVER, an Individual: JENNIFER NASH, an 14 Individual; NICOLE HOLSTON, an Individual; DWIGHT NEVEN, an Individual; DARIO 15 SANCHEZ, an Individual; DEAN MEDEIROS, an Individual; VELASCO, an Individual; KARISSA 16 CURRIER, an Individual; C. McGOWAN, an 17 Individual; MARQUISE L. FRANKLIN, an Individual; JAMES BAUMGRAS, an Individual; 18 RIVERA, an Individual; E. ROJAS, an Individual; ANDREW TRUJILLO, an Individual; NEVADA 19 DEPARTMENT OF CORRECTIONS, a political 20 subdivision of the State of Nevada; 21 22 23 24 25 26 27 28 Defendants. MOTION TO EXTEND TIME FOR SERVICE (Second Request) Plaintiff, ROSEMARY VANDECAR (“Plaintiff”), through her counsel of record, Andréa L. Vieira, Esq. of THE VIEIRA FIRM, PLLC hereby respectfully moves this Court for an extension of time to serve Plaintiff’s Third Amended Complaint (ECF No. 42). This is the second motion to extend time for service. This Motion is made and based on FRCP 4(m), the pleadings and papers on file herein, the following Memorandum of Points and Authorities, the Declaration of Andréa L. Vieira, Esq. 1 Dockets.Justia.com Case 2:20-cv-02150-ART-BNW Document 77 75 Filed 03/29/23 03/28/23 Page 2 of 6 1 and any exhibits thereto, and any argument this Court may allow at the time of hearing. 2 MEMORANDUM OF POINTS AND AUTHORITIES 3 I. RELEVANT PROCEDURAL HISTORY 4 This is an inmate civil rights matter brought pursuant to 42 U.S.C. § 1983. Plaintiff, 5 Rosemary Vandecar, filed a complaint in proper person on July 7, 2021.1 6 On March 10, 2022, an Acceptance of Service on behalf of Defendants Dario Sanchez, 7 A Trujillo, and Harold Wickham was filed.2 8 On June 27, 2022, this Court entered an order that allowed Plaintiff to file a Second 9 Amended Complaint by September 30, 2022.3 On July 8, 2022, undersigned counsel was 10 appointed.4 11 On September 30, 2022, the Second Amended Complaint was filed.5 Thereafter, the A law firm dedicated to Civil Rights and Social Justice 12 parties entered into a Stipulation to File Third Amended Complaint and Set Deadlines to File 13 Notice of Acceptance of Service and Answer.6 On October 21, 2022, this Court entered an Order 14 approving the parties’ stipulation.7 15 Among other things, this Court’s Order required that Defendants file under seal, with 16 service to Plaintiff’s counsel, the last known address for any of the named defendants for whom 17 the Office of the Attorney General (“OAG”) could accept service.8 18 The Third Amended Complaint was filed on October 31, 2022.9 On November 21, 2022, 19 Defendants filed their Acceptance of Service10 (accepting service for every defendant except C 20 McGowan, Maritza Velasco-Avila, Luis Rivera, and Edison Rojas) as well as their Notice of 21 Under Seal Submission.11 22 23 24 25 26 27 28 1 ECF No. 7 ECF No. 24 3 ECF No. 36 4 ECF No. 37 5 ECF No. 39 6 ECF No. 40 7 ECF No. 41 8 ECF No. 41, 2:3-8. 9 ECF No. 42 10 ECF No. 43 and 44 11 ECF No. 44 2 2 Case 2:20-cv-02150-ART-BNW Document 77 75 Filed 03/29/23 03/28/23 Page 3 of 6 1 The summons for each the remaining defendants for which defense counsel did not 2 accept service were issued on December 21, 2022.12 On December 27, 2022, Plaintiff requested 3 an additional 90 days to serve defendants Maritza Velasco-Avila, Luis Rivera, and Edison 4 Rojas.13 Plaintiff’s request was granted on December 28, 2022, and the deadline to serve was 5 extended until March 29, 2023.14 6 Plaintiff’s counsel sent service waivers to all three remaining defendants on January 5, 7 2023.15 None of the service waivers were returned.16 Plaintiff’s counsel subsequently hired a 8 private investigator, Robert Lawson, to locate and serve the remaining defendants.17 Mr. Lawson 9 was able to locate and serve Defendant Maritza Velasco-Avila on March 14, 202318 and 10 Defendant Luis Rivera on March 15, 2023.19 11 Mr. Lawson was also able to locate Defendant Edison Rojas, who is now living in A law firm dedicated to Civil Rights and Social Justice 12 Nebraska and working for the Nebraska Department of Corrections.20 13 Plaintiff respectfully requests an additional 30 days to serve Defendant Edison Rojas in 14 Nebraska where he now lives and works. 15 II. LAW AND ARGUMENT 16 A complaint must be served within 90 days, but if the plaintiff shows good cause for the 17 failure, the court must extend the time for service for an appropriate period.21 18 FRCP 4(m) requires a district court to grant an extension of time when the plaintiff shows 19 good cause for the delay and permits the district court to grant an extension in the absence of 20 good cause.22 Good cause is not a rigorous standard which federal courts construe “broadly across 21 procedural and statutory contexts.”23 Further, requests for an extension beyond the expiration of 22 23 24 25 26 27 28 12 ECF No. 58 ECF No. 59 14 ECF No. 60 15 ECF No. 76 16 Id. 17 Id. 18 ECF No. 71 19 ECF No. 72 20 ECF No. 74 21 FRCP 4(m) 22 Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007) (emphasis in original) 23 Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010) 13 3 Case 2:20-cv-02150-ART-BNW Document 77 75 Filed 03/29/23 03/28/23 Page 4 of 6 1 a deadline should be granted unless there is bad faith on the part of the party seeking relief or 2 there is prejudice to the adverse party.24 3 When exercising its discretion under FRCP 4(m), a district court may consider factors like 4 a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual 5 service.25 6 Here, good cause exists to extend the deadline for service for an additional 30 days 7 because due to Plaintiff’s diligence two of the three defendants remaining to be served have been 8 served, and the remaining defendant has been located out of state. Plaintiff attempted to mitigate 9 service issues by sending each remaining Defendant a service waiver, but the Defendants failed 10 to return the executed waiver. 11 Defendants will not be prejudiced by an additional 30-day extension of time to serve A law firm dedicated to Civil Rights and Social Justice 12 Defendant Edison Rojas only as it is believed that he has actual notice of this lawsuit. As part of 13 the parties’ stipulation, Defense counsel requested time to contact each defendant to obtain for 14 permission to accept service on their behalf. Defendant Rojas is one of the defendants for whom 15 defense counsel did not receive a request for representation.26 Therefore, Defendants Rojas has 16 presumably been made aware of this lawsuit via the Office of the Attorney General yet declined 17 representation. An extension of time will allow time for Plaintiff serve Defendant Rojas in 18 Nebraska, where he has been located and is confirmed as owning a home and working for the 19 Nebraska Department of Corrections. 20 Last, Plaintiff’s counsel has already conferred with defense counsel, Randall Gilmer, 21 from the OAG who stated that he takes no position to Plaintiff’s request and no opposition will 22 be filed.27 23 / / / 24 / / / 25 / / / 26 27 28 24 Id. Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) 26 See ECF No. 41, 1:26 – 2:2. 27 ECF No. 76 25 4 Case 2:20-cv-02150-ART-BNW Document 77 75 Filed 03/29/23 03/28/23 Page 5 of 6 1 III. CONCLUSION 2 Based on the foregoing, Plaintiff respectfully requests an additional 30-day extension of 3 time to serve Defendant Edison Rojas. 4 5 DATED this 28th day of March, 2023. THE VIEIRA FIRM 6 7 By: 8 9 10 11 A law firm dedicated to Civil Rights and Social Justice 12 /s/ Andréa L. Vieira ANDRÉA L. VIEIRA, ESQ. Nevada Bar No. 15667 400 S. 7th St., Ste. 400 Las Vegas, Nevada 89101 Telephone: (702) 820-5853 Facsimile: (702) 820-5836 Andrea@TheVieiraFirm.com Court Appointed Pro Bono Attorney for Plaintiff 13 14 15 ORDER 16 IT IS SO ORDERED 17 DATED: 6:06 pm, March 29, 2023 18 19 20 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 5 Case 2:20-cv-02150-ART-BNW Document 77 75 Filed 03/29/23 03/28/23 Page 6 of 6 1 2 CERTIFICATE OF SERVICE Pursuant to FRCP 5 and LR IC 1-1, I hereby certify that I served a true and correct copy 3 of the foregoing MOTION TO EXTEND TIME FOR SERVICE (Second Request) on the 4 28th day of March, 2023, upon the all parties registered for e-service in the service list of this 5 matter on the court’s electronic filing system, or if the document is one that will not be filed 6 electronically pursuant to LR IC 1-1(c), via U.S. Mail postage fully prepaid, addressed to each 7 party as follows: 8 9 10 11 A law firm dedicated to Civil Rights and Social Justice 12 13 14 15 AARON D. FORD, ESQ. Attorney General TAYLOR M. L. RIVICH, ESQ. Nevada Bar No. 15991 Deputy Attorney General OFFICE OF THE ATTORNEY GENERAL 555 E. Washington Ave., Ste. 3900 Las Vegas, Nevada 89101 Phone: (702) 486-3326 Fax: (702) 486-3773 Email: trivich@ag.nv.gov Attorney for Defendants 16 17 18 19 20 /s/ Andréa Vieira An Employee of THE VIEIRA FIRM, PLLC 21 22 23 24 25 26 27 28 6
]]>
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.
