DeGroote v. City of Mesa et al, No. 2:2007cv01969 - Document 43 (D. Ariz. 2009)

Court Description: ORDER denying Plaintiff Terry DeGroote's 40 Motion for Default Judgment; granting Defendants Rex Griswold, David Ashe, and David Heckel's 24 Motion to Dismiss Plaintiff David DeGroote's Complaint for Insufficient Service of Process; granting Defendants Rex Griswold, David Ashe, and Mark Ishikawa's 24 Motion to Dismiss Plaintiff Terry Degroote's Complaint for Insufficient Service of Process. Signed by Judge Mary H Murguia on 2/25/09.(REW, )
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DeGroote v. City of Mesa et al 1 Doc. 43 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 David DeGroote, ) ) ) Plaintiff, ) ) vs. ) ) City of Mesa, et al., ) ) Defendants. ) ) Terry DeGroote, ) ) Plaintiff, ) ) vs. ) ) City of Mesa, et al., ) ) Defendants ) ) _________________________________ ) No. CV 07-1969-PHX-MHM CV 07-2123-PHX-LOA (Consolidated) ORDER 20 Currently before the Court is Plaintiff Terry DeGroote’s Motion for Default Judgment 21 (Dkt. #40). Defendants filed a Response (Dkt. #41), and no Reply has been filed by Plaintiff 22 Terry DeGroote. Also before the Court are Defendants Rex Griswold, David Ashe, and 23 David Heckel’s (collectively “David DeGroote Defendants”) Motion to Dismiss Plaintiff 24 David DeGroote’s Complaint for Insufficient Service of Process (Dkt. #24). Plaintiff David 25 DeGroote filed a Response (Dkt. #29), and the David DeGroote Defendants filed a Reply 26 (Dkt. #31). Similarly, Defendants Rex Griswold, David Ashe, and Mark Ishikawa 27 (collectively “Terry DeGroote Defendants”) filed a Motion to Dismiss Plaintiff Terry 28 Dockets.Justia.com 1 DeGroote’s Complaint for Insufficient Service of Process (Dkt. # 24). Plaintiff Terry 2 DeGroote filed a Response (Dkt. #29), and the Terry DeGroote Defendants filed a Reply 3 (Dkt. #31). After reviewing the pleadings, the Court issues the following Order. 4 I. BACKGROUND 5 On October 12, 2007, Plaintiff David DeGroote, pro se, commenced this 42 U.S.C. § 6 1983 action against the City of Mesa, five Mesa City Council members, the Mesa City 7 Manager, and six Mesa police officers alleging violations of Plaintiff David DeGroote’s 8 constitutional rights (denial of equal protection, due process and the right to life, liberty and 9 pursuit of happiness) and state tort claims of invasion of privacy, intentional infliction of 10 emotional distress, and intentional interference with prospective advantage. (Dkt. #1). Three 11 weeks later, on October 31, 2007, Plaintiff Terry DeGroote, pro se, David DeGroote’s wife, 12 filed a nearly identical Complaint in CV 07-1969-PHX-MHM against essentially the same 13 Defendants1 involving the same events alleged in Plaintiff David DeGroote’s Complaint in 14 CV 07-2123-PHX-LOA. 15 On November 26, 2007, pursuant to L.R.Civ. 42.1, this Court sua sponte consolidated 16 DeGroote v. City of Mesa, CV 07-1969-PHX-MHM with Degroote v. City of Mesa, CV 07- 17 2123-PHX-LOA. (Dkt. #16). On December 10, 2007, Plaintiff Terry DeGroote filed a 18 Motion for Reconsideration of Consolidation. (Dkt. #19). On January 18, 2008, Defendants 19 filed a Response (Dkt. #20), and no Reply was filed by Plaintiff Terry DeGroote. On April 20 23, 2008, this Court denied Plaintiff Terry DeGroote’s Motion for Reconsideration. (Dkt. 21 #33). 22 On March 11, 2008, the David and Terry DeGroote Defendants jointly filed a Motion 23 to Dismiss Plaintiffs David and Terry DeGroote’s (collectively “Plaintiffs”) Complaints for 24 Insufficient Service of Process. (Dkt. #24). Plaintiffs jointly filed a Response on March 24, 25 2008. (Dkt. #29). Defendants jointly filed a Reply on March 27, 2008. (Dkt. #32). 26 27 28 1 Plaintiff Terry DeGroote sued Mesa City Attorney Ishikawa, but not the City of Mesa’s Vice-Mayor, Claudia Walters. -2- 1 On May 19, 2008, Plaintiff Terry DeGroote filed a Motion for Default Judgment as 2 to all Defendants for failure to answer the Complaint filed by Plaintiff Terry DeGroote. (Dkt. 3 40). Defendants filed a Response on May 22, 2008, arguing that on March 11, 2006, they 4 filed a Motion to Dismiss for failure to state a claim in lieu of filing an answer. (Dkt. #41). 5 No Reply has been filed by Plaintiff Terry DeGroote. 6 II. MOTION FOR DEFAULT JUDGMENT 7 Rule 12 of the Federal Rules of Civil Procedure (“FRCP”) provides, in pertinent part: 8 “Unless another time is specified by this rule or a federal statute, the time for serving a 9 responsive pleading is as follows: (A) a defendant must serve an answer: (I) within 20 days 10 after being served with the summons and complaint . . . .” Fed.R.Civ.P. 12(a)(1)(A)(I). 11 Further, the rule provides in subsection (a)(4) that 12 “[u]nless the court sets a different time, serving a motion under this rule alters these periods as follows: 13 (A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 10 days after notice of the court’s action . . . .” 14 15 Fed.R.Civ.P. 12(a)(4). Thus, when a motion is filed under FRCP 12, the time for serving an 16 answer is tolled until after the Court has issued a ruling on the motion. 17 Here, pursuant to FRCP 12(b)(5) and (6), Defendants filed separate Motions to 18 Dismiss for insufficient service of process and for failure to state a claim on March 11, 2008. 19 (Dkt. ## 23,24). The time for serving an answer is tolled until this Court issues a ruling on 20 the motions to dismiss. See Fed.R.Civ.P. 12(a)(4). As such, Plaintiff Terry DeGroote’s 21 Motion for Default Judgment is denied. 22 III. MOTIONS TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS 23 FRCP 4 provides that if 24 25 26 27 a defendant is not served within [the time allowed], 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. But if the plaintiff shows good cause for the failure, the court must extend the time period for an appropriate period. 28 -3- 1 Fed.R.Civ.P. 4(m). Dismissal of a party is appropriate where a plaintiff fails to show good 2 cause for delays in service. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994). 3 Good cause only exists in rare circumstances. See generally Fimbres v. United States, 833 4 F.2d 138, 139 (9th Cir. 1987) (strategic reasons do not constitute good cause); Townsel v. 5 County of Contra Costa, California, 820 F.2d 319, 320 (9th Cir. 1987) (inadvertence or 6 negligence does not constitute good cause). 7 Here, Plaintiff David DeGroote filed his Complaint on October 12, 2007. Pursuant to 8 FRCP 4(c) and (m), he was required to serve all Defendants with a copy of the Summons and 9 Complaint within 120 days of filing the Complaint–on or before February 11, 2008. 10 Fed.R.Civ.P. 4(c), (m). To date, Plaintiff David DeGroote has not served the David 11 DeGroote Defendants. Similarly, Plaintiff Terry DeGroote filed her Complaint on October 12 31, 2007. Thus, she was required to serve all Defendants with a copy of the Summons and 13 Complaint on or before February 28, 2008. Id. To date, Plaintiff Terry DeGroote has not 14 served the Terry DeGroote Defendants. Therefore, absent a showing of good cause, 15 Defendants must be dismissed. See Fed.R.Civ.P. 4(m); Walker, 14 F.3d at 1421-22. 16 As an initial matter, Plaintiff David DeGroote points to no factors that constitute good 17 cause for his delay in effecting service on Defendant Heckel. Notably, Plaintiff Terry 18 DeGroote served Defendant Heckel on February 28, 2008; her husband provides no 19 justification for his failure to also serve Defendant Heckel. As such, Plaintiff David 20 DeGroote fails to show good cause for his delay in effecting service on Defendant Heckel. 21 In addition, Plaintiff Terry DeGroote argues that she was confused as to whether she 22 should continue to attempt to effect service on the unserved Defendants while her Motion for 23 Reconsideration of Consolidation was pending before the Court. However, in that motion, 24 Plaintiff Terry DeGroote stated that she was holding back service of process to “determine 25 what her best options [were] in handling her individual case.” (Dkt. #19). Further, Plaintiff 26 Terry DeGroote served multiple other Defendants in the instant action on February 28 and 27 29, 2008. (Dkt. ## 34-36). Thus, it appears that her failure to effect service on the Terry 28 -4- 1 DeGroote Defendants was not due to any confusion resulting from her pending Motion for 2 Reconsideration; rather, it appears to have been a strategic decision. 3 Both Plaintiffs argue that Defendant City of Mesa’s failure to cooperate in providing 4 the correct addresses of the David and Terry DeGroote Defendants constitutes good cause 5 for their failure to effect service. However, Plaintiffs provide no evidence whatsoever of any 6 reasonable efforts they undertook to ascertain the addresses of the David and Terry DeGroote 7 Defendants. Defendant City of Mesa’s failure, if any, to cooperate in providing the correct 8 addresses does not constitute good cause given Plaintiffs failure to provide any evidence of 9 any reasonable efforts to ascertain the addresses of the David and Terry DeGroote 10 Defendants. Therefore, Plaintiffs fail to show good cause for their delay in effecting service 11 on the David and Terry DeGroote Defendants. 12 The Court notes that it retains discretion to grant a permissive extension of time to 13 serve, even in the absence of good cause, where there is no statute of limitations bar, lack of 14 prejudice to the defendant,2 or where the defendant was eventually, although not timely, 15 served. See Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). However, the Court 16 finds no compelling basis to permissively extend the time allotted for service under FRCP 17 4(m). As such, the Court will not grant an extension of time to serve in the instant case. 18 IV. CONCLUSION 19 For the foregoing reasons, Plaintiff Terry DeGroote’s Motion for Default Judgment 20 is denied. Further, David DeGroote Defendants’ Motion to Dismiss Plaintiff David 21 DeGroote’s Complaint is granted. Similarly, Terry DeGroote Defendants’ Motion to Dismiss 22 Plaintiff Terry DeGroote’s Complaint is granted. Defendants’ Motion to Dismiss Terry 23 DeGroote’s Complaint and Motion for Judgment on Plaintiff David DeGroote’s Pleadings 24 is addressed in a separate order. 25 26 27 28 2 Defendants cite to McWherter v. CBI Services, Inc., 153 F.R.D. 161 (D. Haw. 1994) for the proposition that lack of prejudice to Defendants is not sufficient to grant an extension of time to serve. However, McWherter was decided under the previous version of FRCP 4(m), which did not permit discretionary extensions of time to serve. -5- 1 Accordingly, 2 IT IS HEREBY ORDERED that Plaintiff Terry DeGroote’s Motion for Default 3 Judgment is DENIED. (Dkt. #40). 4 IT IS FURTHER ORDERED that Defendants Rex Griswold, David Ashe, and 5 David Heckel’s Motion to Dismiss Plaintiff David DeGroote’s Complaint for Insufficient 6 Service of Process is GRANTED. (Dkt. #24). 7 IT IS FURTHER ORDERED that Defendants Rex Griswold, David Ashe, and Mark 8 Ishikawa’s Motion to Dismiss Plaintiff Terry Degroote’s Complaint for Insufficient Service 9 of Process is GRANTED. (Dkt. #24). 10 DATED this 25th day of February, 2009. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-