Caldera-Bredeson v. United States Postal Service (USPS), No. 2:2021cv01620 - Document 41 (D. Nev. 2023)
Court Description: ORDER Denying 15 Motion to Dismiss and Granting nunc pro tunc 20 Motion to Extend Time. Signed by Judge Gloria M. Navarro on 3/13/2023. (Copies have been distributed pursuant to the NEF - TRW)
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Caldera-Bredeson v. United States Postal Service (USPS) Doc. 41 Case 2:21-cv-01620-GMN-NJK Document 41 Filed 03/13/23 Page 1 of 10 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 LINDA CALDERA-BREDESON, 4 Plaintiff, 5 6 vs. UNITED STATES POSTAL SERVICE, 7 Defendants. 8 ) ) ) ) ) ) ) ) ) Case No.: 2:21-cv-01620-GMN-NJK ORDER 9 Pending before the Court is Defendant United States Postal Service’s (“Defendant’s”) 10 11 Motion to Dismiss, (ECF No. 15). Plaintiff Linda Caldera-Bredeson (“Plaintiff”) filed a 12 Response, (ECF No. 19), to which Defendant filed a Reply, (ECF No. 23). 13 Also pending before the Court is Plaintiff’s Motion to Extend Time for Service to July 14 12, 2022, (ECF No. 20). Defendant filed a Response, (ECF No. 24), to which Plaintiff filed a 15 Reply, (ECF No. 25). For the reasons discussed below, the Court DENIES Defendant’s Motion to Dismiss and 16 17 GRANTS Plaintiff’s Motion to Extend Time for Service to July 12, 2022. 18 I. 19 BACKGROUND This case arises from Plaintiff’s alleged slip and fall at a United States Postal Service 20 (“USPS”) office in 2019. (See generally Compl., ECF No. 1). Plaintiff filed her Complaint on 21 September 1, 2021. (Id.). Federal law governs service of process on Defendant, a federal 22 agency. 39 U.S.C. § 409(b). Fed. R. Civ. P. 4(i) sets forth specific requirements for serving the 23 United States Government and its agencies. Rule 4(i) requires that a plaintiff either “deliver a 24 copy of the summons and of the complaint to the United States attorney for the district where 25 the action is brought” or mail the summons and complaint to the civil-process clerk at the Page 1 of 10 Dockets.Justia.com Case 2:21-cv-01620-GMN-NJK Document 41 Filed 03/13/23 Page 2 of 10 1 United States Attorney’s Office. Fed. R. Civ. P. 4(i)(1)(A). A plaintiff must also send a copy of 2 the summons and complaint to the United States Attorney General. Fed. R. Civ. P. 4(i)(1)(B). On October 27, 2021, Plaintiff served the United States Attorney’s Office for the District 3 4 of Nevada. (Aff. Service, ECF No. 5). On October 28, 2021, Defendant sent Plaintiff a letter 5 requesting an affidavit of service reflecting service on USPS. (October 28, 2021, Letter at 1, 6 Ex. A to Mot. Dismiss (“MTD”), ECF No. 15-1). Six months later, on April 28, 2022, 7 Plaintiff’s counsel responded to Defendant’s letter, inquiring about whether anyone responded. 8 (April 28, 2022, Letter at 1, Ex. B to MTD, ECF No. 15-2). On April 29, 2022, Plaintiff filed an Ex Parte Motion to Extend Time to Serve Pursuant 9 10 to Fed. R. Civ. P. 4(i)(4)(a), (ECF No. 7), which the Court subsequently granted on May 2, 11 2022. (Min. Order, ECF No. 9). Pursuant to this Order, Plaintiff was given until May 6, 2022, 12 to complete service. (Id.). On May 2, 2022, Plaintiff served the summons and Complaint on 13 Defendant, (Summons, ECF Nos. 11, 14), but did not complete all the necessary steps to 14 effectuate service of process until July 12, 2022. According to Plaintiff, this delay was 15 attributable to a misunderstanding on how to complete service of process on Defendant, a 16 federal agency, pursuant to Fed. R. Civ. P. 4(i). Plaintiff completed the first two step of service upon a federal agency: service upon the 17 18 local United States Attorney’s Office for the district where the action is brought and the federal 19 agency at issue, by May 2, 2022. (Resp. Mot. Extend Time 2:5–9) (acknowledging that Plaintiff 20 completed the first two steps of service by May 2, 2022). However, Plaintiff mistook service of 21 process upon the local United States Attorney’s Office as constituting service upon the United 22 States Attorney General. (Mot. Extend Time 9:10–10:3, ECF No. 20). As a result, Plaintiff did 23 not complete the last step, service upon the United States Attorney General’s office, until July 24 12, 2022. (Proof Service at 1, Ex. 1 to Resp. MTD, ECF No. 19-1). 25 /// Page 2 of 10 Case 2:21-cv-01620-GMN-NJK Document 41 Filed 03/13/23 Page 3 of 10 On July 1, 2022, Defendant filed its Motion to Dismiss, (ECF No. 15), contending that 1 2 Plaintiff’s Complaint should be dismissed because of her failure to timely complete service of 3 process. On July 22, 2022, Plaintiff filed Motion to Extend Time for Service to July 12, 2022. 4 (ECF No. 20). As the outcome of these Motions hinge on whether the Court retroactively 5 grants Plaintiff an extension of time to serve Defendant, the Court discusses both Motions 6 below. 7 II. 8 9 LEGAL STANDARD A defendant may move to dismiss for insufficient service of process. Fed. R. Civ. P. 12(b)(5). After an action is commenced, the plaintiff must serve the complaint on the 10 defendant within ninety (90) days. Fed. R. Civ. P. 4(m). For a plaintiff who does not comply 11 with the service deadline, Rule 4(m), provides two avenues for relief. 12 The first is mandatory: the court must extend for service upon a showing of good cause. 13 “In the Ninth Circuit, a showing of good cause requires more than simply inadvertence, mistake 14 of counsel, or ignorance of the rules.” Bonner v. Leon, No. 2:13-cv-01858, 2013 WL 6693649, 15 at *2 (D. Nev. Dec. 17, 2013) (citing Nat’l Union Fire Ins. Co. v. Monroe, No. 2:10-cv-00385, 16 2011 WL 383807, at *1 (D. Nev. Feb. 2, 2011). Instead, “courts generally equate ‘good cause’ 17 with diligence.” Hoffman v. Red Wing Brands of America, Inc., No. 3:13-cv-00633, 2014 WL 18 4636349, at *4 (D. Nev. Sept. 16, 2014) (quoting Bonner, 2013 WL 6693649, at *2). 19 The second is discretionary: “if good cause is not established, the district court may 20 extend time for service upon a showing of excusable neglect.” Lemoge v. United States, 587 21 F.3d 1188, 1198 (9th Cir. 2009) (emphasis added). “To determine whether a party’s failure to 22 meet a deadline constitutes ‘excusable neglect,’ courts must apply a four-factor equitable test 23 []” based upon Pioneer Invs. Servs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380 (1993), and 24 Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir. 1997). Hoffman, 2014 WL 4636349, 25 at *4. The equitable test requires examinations of: “(1) the danger of prejudice to the opposing Page 3 of 10 Case 2:21-cv-01620-GMN-NJK Document 41 Filed 03/13/23 Page 4 of 10 1 party; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason 2 for the delay; and (4) whether the movant acted in good faith.” Id. (internal quote marks and 3 citations omitted). “Those four enumerated factors are not exhaustive however,” and “[i]n 4 some circumstances, the prejudice a denial would cause to the movant must also be considered, 5 but it is not a fact that must be assessed in each and every case.” Johnson v. Berndt, No. 2:20- 6 cv-00150, 2022 WL 1016614, at *2 (D. Nev. Apr. 5, 2022) (citation omitted). 7 III. DISCUSSION 8 A. Mandatory Extension of Time 9 Beginning with the mandatory avenue for relief, the Court finds that Plaintiff’s counsel 10 has failed to establish good cause warranting a mandatory extension of time under Rule 4(m). 11 Plaintiff’s offers two reasons why good cause exists: (1) any delay was caused by Plaintiff’s 12 counsel’s good faith “negligence or omissions caused by carelessness” in adhering to Rule 4(i); 13 and (2) any delay is excusable because Plaintiff completed service upon Defendant under Fed. 14 R. Civ. P. 4(i) on July 12, 2022. (Mot. Extend Time 6:5–10:10). As to the former justification, “[c]ounsel’s mistake or oversight does not constitute good 15 16 cause for an extension of time under Rule 4.” Rodriguez v. Pfeiffer, No. 1:21-cv-00572, 2022 17 WL 686454, at *2 (E.D. Cal. Mar. 8, 2022); see Johnson v. Mao Ge Bascom LLC, No. 16-cv- 18 04169, 2017 WL 2572593, at *2 (N.D. Cal. June 14, 2017) (“Courts have dismissed suits for 19 insufficient service of process where the party defending service was not diligent, even after 20 learning of the defective service . . . ; where counsel simply forgot about the time limits for 21 service of process . . . ; and where counsel made no attempt to serve the summons and 22 complaint during the time for service[.]”) (internal citations omitted). Indeed, the rule within 23 the Ninth Circuit is that “a showing of good cause requires more than simple inadvertence, 24 mistake of counsel, or ignorance of the rules.” Bonner, 2013 WL 6693649, at *2. Accordingly, 25 /// Page 4 of 10 Case 2:21-cv-01620-GMN-NJK Document 41 Filed 03/13/23 Page 5 of 10 1 any inadvertence, mistake by Plaintiff’s counsel, or ignorance of the rules fails to demonstrate 2 good cause. 3 As to Plaintiff’s latter justification, the mere fact that Plaintiff now completed service 4 explains neither why it took an additional sixty-seven days to complete service, nor why such a 5 delay should be excused. (Resp. MTD 2:11–19, ECF No. 19). Further, “[t]he fact that 6 Defendant was eventually served does not repair the defect.” Bradford v. Slayton, No. 6:19-cv- 7 02073, 2021 WL 1341855, at *2 (D. Or. Apr. 9, 2021) (citing Senn v. City of Portland, No. 8 3:18-cv-01814, 2019 WL 3577662, at *2, 4 (D. Or. Aug. 6, 2019) (finding no good cause or 9 excusable neglect to justify extending the time for service under Rule 4 when the defendants 10 were belated serving 178 and 196 days after the filing of the complaint). Accordingly, Plaintiff 11 has failed to establish good cause warranting a mandatory extension of time under Rule 4(m). 12 B. Permissive Extension of Time 13 Turning to the permissive avenue of relief, however, the Court concludes that Plaintiff 14 has shown excusable neglect. As stated, excusable neglect generally depends on four factors: 15 “(1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential 16 impact on judicial proceedings; (3) the reason for the delay; and (4) whether the movant acted 17 in good faith.” Hoffman, 2014 WL 4636349, at *4. Further, “in some circumstances, the 18 prejudice a denial would cause to the movant must also be considered, but it is not a fact that 19 must be assessed in each and every case.” Johnson, 2022 WL 1016614, at *2 (citation omitted). 20 The Court will begin by considering the danger of prejudice faced by Plaintiff and Defendant. 21 1. Danger of Prejudice 22 Plaintiff asserts she will be “severely prejudiced” if the Court denies “her countermotion 23 to extend time” because her personal injury claims that underly this suit would be barred by the 24 applicable statute of limitations. (Reply Mot. Extend Time 4:22–5:8, ECF No. 25); (see Mot. 25 Extend Time 14:3–9). In response, Defendant acknowledges that it “does not yet have specific Page 5 of 10 Case 2:21-cv-01620-GMN-NJK Document 41 Filed 03/13/23 Page 6 of 10 1 evidence of prejudice resulting from the extended delay” in service but nevertheless maintains 2 that “the increased risk of faded memories and stale evidence” caused by Plaintiff’s delay 3 “justifies dismissal.” (Resp. Mot. Extend Time 4:25–27). 4 In this case, both parties identify a cognizable risk of prejudice. For Plaintiff, a 5 determination by this Court that an extension of time is not warranted, and that dismissal is 6 appropriate, would result in her underlying cause of action being time-barred by the applicable 7 statute of limitation. See Sobhani v. United States, No. 14-cv-6022, 2015 WL 3407702, at *4 8 (C.D. Cal. May 27, 2015) (“Where a dismissal without prejudice would severely prejudice a 9 plaintiff because the statute of limitations would bar its claim, relief may be appropriate.”) 10 (citation omitted); Mann v. Am. Airlines, 324 F.3d 1088, 1091 (9th Cir. 2003) (“Relief may be 11 justified, for example, if the applicable statute of limitations would bar the re-filed action.”); 12 but see Tate v. Hernandez, No. 19-cv-5089, 2021 WL 2043219, at *3 (D. Ariz. Apr. 29, 2021) 13 (finding no excusable neglect where the plaintiff failed to show the defendant had notice of the 14 suit and identified no prejudice “beyond the ordinary loss of his claim for damages as a result 15 of the statute of limitations”). Denying Plaintiff’s Motion to Extend Time would effectively be 16 a dismissal with prejudice. 17 In contrast, for Defendant, Plaintiff’s delay in service has potentially hindered its ability 18 to defend itself by increasing the risk of unavailable witnesses, faded memory, and loss of 19 physical evidence. See Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (“Unnecessary 20 delays inherently increases the risk that witnesses’ memories will fade and evidence will 21 become stale.”); Cota v. Carrows Restaurants, LLC, No. 20-cv-1428, 2022 WL 2119124, at *4 22 (S.D. Cal. June 13, 2022) (observing that the plaintiff’s delay in service prejudiced the 23 defendant by increasing the risk of “unavailable witnesses, faded memory, or loss of physical 24 evidence”); Barker v. Wingo, 407 U.S. 514, 521 (1972) (recognizing that delays in litigation 25 may result in witness unavailability or faded memory”). However, at this point, Defendant Page 6 of 10 Case 2:21-cv-01620-GMN-NJK Document 41 Filed 03/13/23 Page 7 of 10 1 concedes it “does not yet have specific evidence of prejudice resulting from the extended 2 delay.” (Resp. Mot. Extend Time 4:25–27). Thus, Defendant’s identified prejudice remains 3 speculative at this point. 4 In balancing the two forms of prejudice identified by the parties, Plaintiff’s 5 predominates. It is undisputed that Plaintiff’s claim will be time-barred if the Court denies her 6 Motion to Extend Time, whereas Defendant’s proffered prejudice remains to materialize. 7 Further, Defendant’s loss of a procedural victory is not sufficiently prejudicial to deny 8 Plaintiff’s relief. See Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1262 (9th Cir. 2010) 9 (“At most, they would have won a quick but unmerited victory, the loss of which we do not 10 consider prejudicial.”); Vertin v. Goddard, No. 11-cv-01167, 2013 1932810, at *3 (D. Ariz. 11 May 8, 2013) (“Although Defendants would prefer to avoid litigation on the merits by having 12 the claims dismissed, Defendants’ loss of a ‘quick victory is not sufficiently prejudicial to deny 13 [the plaintiff] relief.”) (quoting Trueman v. Johnson, No. 09-cv-2179, 2011 WL 6721327, at *3 14 (D. Ariz. Dec. 21, 2011)). Accordingly, the danger of prejudice weighs in favor of finding 15 excusable neglect. 16 17 2. Length of the Delay and Impact “[Rule] 4(m) encourages efficient litigation by minimizing the time between 18 commencement of an action and service of process.” Hopscotch Adoptions, Inc. v. 19 Kachadurian, No. 09-cv-2101, 2010 WL 5313514, at *1 (E.D. Cal. Dec. 20, 2010) (quoting 20 Elec. Specialty Co. v. Rd. & Ranch Supply, Inc., 967 F.2d 309, 311 (9th Cir. 1992) (addressing 21 former Fed. R. Civ. P. 4(j))). Courts have found excusable neglect when the delay in service 22 was “minimal.” See, e.g., Garcia v. Cty. of San Diego, No. 15-CV-189, 2016 WL 11621400, at 23 *3 (S.D. Cal. Mar. 22, 2016) (exercising discretion to extend service for a four-day delay); 24 Tyson v. City of Sunnyvale, 159 F.R.D. 528, 530–31 (N.D. Cal. 1995) (exercising discretion to 25 extend service for a one-day delay); Strange v. Eastman Outdoors, Inc., No. 2:14-cv-1735, Page 7 of 10 Case 2:21-cv-01620-GMN-NJK Document 41 Filed 03/13/23 Page 8 of 10 1 2015 WL 12672696, at *2 (E.D. Cal. May 13, 2015) (exercising discretion to extend service for 2 a 43-day delay). 3 Here, Plaintiff’s sixty-seven delay was not minimal. However, the “Ninth Circuit has 4 affirmed district courts when granting extensions for service months after the initial deadline.” 5 James v. County of Sacramento, No. 2:18-cv-00180, 2022 WL 2533484, at *4 (E.D. Cal. July 6 7, 2022); see Lemoge, 587 F.3d at 1198 (9th Cir. 2009) (holding relief under Rule 4(m) was 7 appropriate even though service was untimely by multiple months). Therefore, while the delay 8 weighs against Plaintiff, it is not extraordinary. 9 10 3. Reason for Delay Plaintiff contends the reason for delay is attributable to the earlier withdrawal of 11 counsel. It was during her counsel’s withdrawal on April 29, 2022, that Plaintiff’s current 12 attorneys “discovered (while preparing to seek default) that service had not been properly 13 effected.” (Mot. Extend Time 9:7–15). In response, Defendant points out that Sandy Van, 14 Plaintiff’s current counsel, “has been listed as counsel of record in this case from its inception,” 15 and therefore should have been aware of any deficiencies in the execution of service of process. 16 (Resp. Mot. Extend Time 3:10–3:11). Defendant further contends that Plaintiff’s proffered 17 reason does not explain her delay in completing service of process. (Id. 5:13–21). 18 “Analysis for the reason for a delay includes ‘whether it was within the reasonable 19 control of the movant.’” Tung Tai Grp. v. Oblon, No. 08-cv-5370, 2010 WL 2681962, at *3 20 (N.D. Cal. July 6, 2010) (quoting Pioneer, 507 U.S. at 395). Here, Plaintiff’s delay falls 21 squarely within her control. First, as Defendant points out, despite the withdrawal of counsel, 22 Plaintiff’s current counsel has been listed as counsel of record in this case from its inception. 23 (Resp. 3:10–3:11). It is Plaintiff’s counsel’s responsibility to manage deadlines and “litigants 24 are bound by the conduct of their attorneys, absent egregious circumstances,” which have not 25 been established here. Wei, 763 F.2d at 372 (internal citations omitted). Second, even assuming Page 8 of 10 Case 2:21-cv-01620-GMN-NJK Document 41 Filed 03/13/23 Page 9 of 10 1 that the withdrawal of counsel is an adequate reason for a delay, Plaintiff does not explain why 2 a sixty-seven delay is reasonable. Indeed, Plaintiff’s Ex Parte Motion to Extend Time, (ECF 3 No. 7), filed the same day Plaintiff filed her Notice of Dissociation of Counsel, (ECF No. 6), 4 only requested an additional “seven (7) days from the date of” the date of the Ex Parte Motion, 5 or May 6, 2022, to complete service of Defendant. (Ex Parte Mot. Extend Time 4:15–17, ECF 6 No. 7). It is unclear to the Court why the withdrawal of counsel should now be considered a 7 sufficient reason to excuse Plaintiff’s sixty-seven-day delay until July 12, 2022, when 8 Plaintiff’s counsel represented to the Court that it could remedy any issue caused by this 9 withdrawal by May 6, 2022. (Id.). Accordingly, Plaintiff’s counsel’s oversight and proffered 10 justification does not favor a finding of excusable neglect. See Mumpower v. England, 292 Fed. 11 App’x 567, 567 (9th Cir. 2008) (finding that the plaintiff’s counsel’s failure to review the 12 Federal Rules of Civil Procedure did not excuse delayed service). 13 14 4. Good Faith Here, Defendant does not contend that Plaintiff’s “conduct was the result of 15 ‘deviousness or willfulness.’” (Reply MTD 5:23–27) (internal citation omitted). The Court 16 agrees. The circumstances do not give rise to the conclusion that “Plaintiff . . . acted in bad 17 faith, as opposed to simply being ineffective” in effectuating service of process. Goff v. Rode, 18 No. 20-cv-1284, 2022 WL 706780, at *2 (D. Ariz. Feb. 8, 2022). 19 5. Totality of the Circumstances 20 As stated, Plaintiff has not established good cause for this delay. However, the Court is 21 still free to use its discretion. The length and reason of delay weighs against Plaintiff, but there 22 is little to no evidence this delay has prejudiced Defendant beyond the mere existence of the 23 delay itself. On the other hand, dismissal would prejudice Plaintiff, namely the ultimate 24 prejudice of preventing re-filing of the claim. Given the substantial prejudice that would arise 25 from denying Plaintiff’s Motion and granting Defendant’s, the Court finds that the totality of Page 9 of 10 Case 2:21-cv-01620-GMN-NJK Document 41 Filed 03/13/23 Page 10 of 10 1 the circumstances favor retroactively granting Plaintiff an extension of time until July 12, 2022, 2 to complete service of process. Accordingly, Plaintiff’s Motion to Extend Time is GRANTED 3 and Defendant’s Motion to Dismiss is DENIED. 4 IV. 5 6 7 8 9 CONCLUSION IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, (ECF No. 15), is DENIED. IT IS FURTHER ORDERED that Plaintiff’s Motion to Extend Time, (ECF No. 20), is GRANTED nunc pro tunc. 13 day of March, 2023. DATED this _____ 10 11 12 ___________________________________ Gloria M. Navarro, District Judge UNITED STATES DISTRICT COURT 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 10 of 10
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