Rood v. Nelson et al, No. 2:2012cv00893 - Document 24 (D. Nev. 2012)
Court Description: ORDER Granting 23 Motion to Extend Time to Service Summons and Complaint Until 12/21/2012. Signed by Magistrate Judge Robert J. Johnston on 8/29/12. (Copies have been distributed pursuant to the NEF - MMM)
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Rood v. Nelson et al Doc. 24 Case 2:12-cv-00893-LRH-RJJ Document 23 Filed 08/28/12 Page 1 of 6 1 E. Robert Spear (8672) LAW OFFICE OF ROBERT SPEAR 2 3654 North Rancho Drive 3 Las Vegas, Nevada 89130 Telephone: (702) 750-0571 4 Facsimile: (702) 750-0572 5 email: rspear@spearlegal.com 6 Attorneys for Plaintiff 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 MARTIN S. ROOD, an individual, 11 12 Plaintiff, v. 13 14 15 16 17 ARTHUR F. NELSON, an individual; DON FOSTER SCROGGINS, an individual; JACK P. GILLESPIE, an individual; APPRAISERS OF LAS VEGAS, a Nevada corporation; DOES 1 through 5, and ROE CORPORATIONS 1 through 5, MOTION TO EXTEND TIME TO SERVE SUMMONS AND COMPLAINT ON DON FOSTER SCOGGINS AND ARTHUR F NELSON Defendants. 18 19 20 Case No.: 2:12-cv-00893-LRH-RJJ Plaintiff Martin S. Rood through his counsel the Law Office of Robert Spear moves this Court for an extension of time in which to serve Defendants Arthur F. Nelson and Don Foster 21 22 Scoggins. Plaintiff requests an additional ninety (90) days in addition to the one hundred 23 twenty days provided by Fed. R. of Civ. Proc. 4(m), or until December 21, 2012, to serve 24 Defendants Don Foster Scoggins and Arthur F. Nelson. Plaintiff moves this Court pursuant to 25 Federal Rule of Civil Procedure 4(m) based upon the facts set forth in the points and authorities 26 /// 27 28 /// /// Dockets.Justia.com Case 2:12-cv-00893-LRH-RJJ Document 23 Filed 08/28/12 Page 2 of 6 1 below, the pleadings and papers on file herein, and based upon any arguments of counsel that 2 this Court may choose to entertain should this Court wish to set this motion for hearing. 3 4 Dated this 28th day of August, 2012. 5 6 7 8 9 /s/ E. Robert Spear E. Robert Spear (8672) LAW OFFICE OF ROBERT SPEAR 3654 North Rancho Drive Las Vegas, Nevada 89130 Attorneys for Plaintiff 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case 2:12-cv-00893-LRH-RJJ Document 23 1 Filed 08/28/12 Page 3 of 6 POINTS AND AUTHORITIES 2 1. FACTUAL BACKGROUND. 3 4 Plaintiff Martin S. Rood filed his complaint in this action on May 25, 2012. Since that 5 date, Plaintiff has attempted to serve each of the Defendants in this action. To date, 6 undersigned counsel has through various means obtained service of the summons and 7 complaint on Defendant Jack P. Gillespie and on Defendant Appraisers of Las Vegas (by means 8 9 10 of service through the Nevada Secretary of State Office). Plaintiff has sought to serve the summons and complaint on Defendants Arthur F. 11 Nelson and Don Foster Scoggins, but has not as yet obtained service on these individuals. 12 Plaintiff’s undersigned counsel has searched for these individuals by searching through the 13 Nevada Secretary of State’s office records, by searching through the Nevada Real Estate 14 15 Division records and by contacting the Division, by contacting the Appraisal Institute’s local 16 chapter president, by contacting the individual who purchased Mr. Scoggins business 17 operations, by contacting Mr. Scoggins’ insurance carrier (which has denied Mr. Scoggins is 18 insured despite Plaintiff’s possession of Mr. Scoggins’ insurance declaration page), by asking 19 20 Mr. Gillespie through counsel if he has knowledge of his co-defendants’ current locations, and 21 by conducting various searches including skip traces using online services through Lexis.com. 22 As to Defendant Don Foster Scoggins, Plaintiff has sought for Mr. Scoggins in various 23 locations, including in Las Vegas, Nevada. Plaintiff has even heard that Mr. Scoggins may 24 have been in Africa serving a mission for his church. Plaintiff believes he may have found 25 26 Defendant Don Foster Scoggins in Atlanta, Georgia and has sent the summons and complaint 27 out for service to that location. Plaintiff has also learned that Mr. Scoggins may have used or 28 may currently be using one or more different names. 3 Case 2:12-cv-00893-LRH-RJJ Document 23 1 2 Filed 08/28/12 Page 4 of 6 Plaintiff has also sought for the location of Arthur F. Nelson in Las Vegas, Nevada and other locations and believes he may have found Mr. Nelson in Newport Beach, California. 3 4 However, Plaintiff has also recently learned that Mr. Nelson may have passed away since the 5 events underlying the complaint took place. The date for service of process has not yet passed. One hundred twenty days from the 6 7 date of filing the complaint is September 22, 2012. 8 2. LEGAL ARGUMENTS. 9 10 Federal Rule of Civil Procedure 4(m) governs extensions of time for service of the 11 summons and complaint in a case. This rule states in pertinent part as follows: 12 (m) Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, 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 for service for an appropriate period....1 13 14 15 16 17 “When entertaining a motion to extend time for service, the district court must proceed 18 in the following manner. First, the district court should determine whether good cause exists 19 for an extension of time. If good cause is present, the district court must extend time for service 20 21 22 and the inquiry is ended.”2 Here, Plaintiff believes he has shown good cause for his failure to serve Defendants Don 23 Foster Scoggins and Arthur F. Nelson. Plaintiff and undersigned counsel have diligently sought 24 to find these two individuals as described in this motion. Despite these efforts, Plaintiff has yet 25 26 27 1 See Fed. R. of Civ. Proc. 4(m). 28 2 See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. Pa. 1995). 4 Case 2:12-cv-00893-LRH-RJJ Document 23 Filed 08/28/12 Page 5 of 6 1 to serve these two Defendants. Even though the date for service of the summons and complaint 2 will not pass until September 22, 2012, Plaintiff has filed this motion out of an abundance of 3 4 caution in light of the difficulty Plaintiff has had locating these individuals. Plaintiff may also 5 need time to substitute a new Defendant into this action, the estate of Mr. Nelson, prior to 6 proceeding. Accordingly, Plaintiff requests an additional ninety (90) days in addition to the one 7 hundred twenty days provided by Fed. R. of Civ. Proc. 4(m), or until December 21, 2012. 8 3. CONCLUSION. 9 10 Based upon the foregoing, Plaintiff requests an additional ninety (90) days in addition to 11 the one hundred twenty days provided by Fed. R. of Civ. Proc. 4(m), or until December 21, 12 2012, to serve Defendants Don Foster Scoggins and Arthur F. Nelson. 13 Dated this 28th day of August, 2012. 14 15 16 17 18 19 /s/ E. Robert Spear E. Robert Spear (8672) LAW OFFICE OF ROBERT SPEAR 3654 North Rancho Drive Las Vegas, Nevada 89130 Attorneys for Plaintiff Martin S. Rood 20 21 22 23 24 25 26 27 August 29, 2012 28 5 Case 2:12-cv-00893-LRH-RJJ Document 23 1 2 Filed 08/28/12 Page 6 of 6 CERTIFICATE OF SERVICE Pursuant to FRCP, I certify that I am an employee of LAW OFFICE OF ROBERT 3 4 SPEAR, and that on this 28th day of August, 2012, I caused the above and foregoing 5 document entitled: MOTION TO EXTEND TIME TO SERVE SUMMONS AND 6 COMPLAINT ON DON FOSTER SCOGGINS AND ARTHUR F NELSON to be served 7 as follows: 8 [ X ] by placing same to be deposited for mailing in the United States Mail, in a 9 sealed envelope upon which first class postage was prepaid in Las Vegas, Nevada; and/or 10 [ ] by facsimile transmission to the facsimile number(s) shown below and in the confirmation sheet filed herewith; and/or 11 12 13 [ ] to be hand-delivered; to the attorneys listed below at the address and/or facsimile number indicated below: 14 S. Don Bennion, Jr., Esq. DURHAM JONES & PINEGAR, PC 15 10785 W. Twain Avenue, Suite 200 16 Las Vegas, NV 89135 17 Attorneys for Defendant Jack P. Gillespie 18 19 20 21 /s/ Sean A. Waugh An employee of Law Office of Robert Spear 22 23 24 25 26 27 28 6
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