Gomez v. EOS CCA ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Eduardo Gomez, No. CV-18-02740-PHX-JAT (DMF) 10 Plaintiff, ORDER 11 v. 12 EOS CCA, et al., 13 Defendants. 14 15 Pending before the Court is Defendant EOS CCA’s Motion to Dismiss Plaintiff’s 16 Complaint. (Doc. 43). Plaintiff Eduardo Gomez (“Plaintiff”) has responded, (Doc. 56), and 17 EOS CCA has replied, (Doc. 58). The Court now rules on the motion. 18 This case arises out of Plaintiff’s allegations that Defendants violated the Fair Credit 19 Reporting Act (“FCRA”) and Fair Debt Collection Practices Act (“FDCPA”). (Doc. 6 at 20 1). Plaintiff asserts Defendants TransUnion and Equifax violated provisions of the FCRA 21 that require such “consumer reporting agencies” to follow reasonable procedures to ensure 22 maximal accuracy in consumer credit reports and to reinvestigate a nonfrivolous consumer 23 complaint of an inaccuracy in his or her credit report. (Id. at 3–4). Plaintiff raises four 24 FDCPA claims, levying them exclusively against Defendant EOS CCA. (Id. at 4). In the 25 pending motion to dismiss, EOS CCA argues that Plaintiff’s action against it must be 26 dismissed because Plaintiff failed to timely serve it with the summons and complaint under 27 Federal Rule of Civil Procedure (“Rule”) 4(m) and this Court’s order extending the time 28 to effect service, (Doc. 26). (Doc. 43 at 1). 1 Under Rule 4(m), if a summons and complaint are not served on a defendant within 2 90 days after filing, a court shall either dismiss the action or, if the plaintiff shows good 3 cause for the failure, direct that service be effected within a specified time. 4 [G]ood cause is likely (but not always) to be found when the plaintiff's failure 5 to complete service in timely fashion is a result of the conduct of a third person, typically the process server, the defendant has evaded service of the 6 process or engaged in misleading conduct, the plaintiff has acted diligently 7 in trying to effect service or there are understandable mitigating circumstances, or the plaintiff is proceeding pro se or in forma pauperis. 8 9 4B Charles Alan Wright, Arthur R. Miller & Adam N. Steinman, Federal Practice and 10 Procedure § 1137 (4th ed. April 2020 Update). Rule 4(m) also permits a court to grant a 11 discretionary extension even absent good cause. Efaw v. Williams, 473 F.3d 1038, 1040 12 (9th Cir. 2007). A court abuses that discretion, however, when it fails to consider such 13 factors as “a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, 14 and eventual service.” Id. at 1041 (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 15 381, 383 (7th Cir. 1998)). 16 Previously, this Court dismissed Plaintiff’s action against EOS CCA after Plaintiff 17 failed to respond to an order to show cause for not timely serving EOS CCA. (Doc. 21). 18 Once Plaintiff responded to the order to show cause, (Doc. 25), the Court exercised its 19 discretion to excuse his failure to timely serve EOS CCA and ordered him to “complete 20 and return the service packet to the Clerk of the Court within 21 days” of June 10, 2019, 21 (Doc. 26 at 2). Because Plaintiff is a pro se prisoner whose filings generally benefit from 22 the mailbox rule, see Douglas v. Noelle, 567 F.3d 1103, 1106–07 (9th Cir. 2009), he had 23 until July 1, 2019, to at least deliver the service packet to prison authorities in order to 24 comply with the Court’s order. 25 EOS CCA argues that Plaintiff’s action against it must be dismissed again because 26 the U.S. Marshal’s process receipt form was signed on July 22, 2019. (Doc. 43 at 3–4). 27 According to EOS CCA, the July 22 signature date necessarily means that Plaintiff could 28 not have complied with the Court’s order to return the service packet to the Clerk of the 1 Court within 21 days. A review of the Court’s docket, however, reveals that the Clerk of 2 the Court noted receipt of the service packet on July 22. Thus, contrary to EOS CCA’s 3 representation, that date does not necessarily represent the day Plaintiff completed the 4 form. The Court acknowledges that the interval between July 1 and July 22 is not 5 insignificant, nevertheless, the Court cannot definitively conclude that Plaintiff failed to 6 deliver his service packet to prison authorities by July 1. It is clearly within the realm of 7 possibility that Plaintiff completed his packet and handed it to prison authorities on or 8 before July 1 and that the July 22 receipt date is attributable to those authorities’ delay. 9 Absent a contrary showing, the Court cannot exclude that possibility. Accordingly, given 10 the mailbox rule, the Court cannot grant a motion to dismiss based on lack of timeliness.1 11 EOS CCA’s motion seemingly makes much of the fact that that the U.S. Marshal 12 did not serve Plaintiff’s complaint until October 7, 2019. (Doc. 43 at 4). However, “an 13 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. 14 Marshal for service of the summons and complaint, and, having provided the necessary 15 information to help effectuate service, plaintiff[s] should not be penalized” for their delays. 16 Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (emphasis omitted). Any such delays 17 thus qualify, automatically, as good cause under Rule 4(m). Armado v. Advanced Call Ctr. 18 Techs., No. CV 10-1630-PHX-JAT, 2011 WL 906053, at *1 (D. Ariz. Mar. 16, 2011). 19 Therefore, to the extent EOS CCA argues that the action against it should be dismissed on 20 the basis that it was not served until October 7, that argument similarly misses the mark. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 1 In reply, EOS CCA asks the Court to treat Plaintiff’s late response as consent to the granting of its motion under LRCiv 7.2(i). (Doc. 58 at 12). LRCiv 7.2(i), however, is 28 expressly discretionary. The Court declines to exercise its discretion to grant a motion that seeks dismissal for a reason contrary to the record. 1 For these reasons, 2 IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to || Defendant EOS CCA’s Motion to Dismiss (Doc. 43). 4 IT IS ORDERED that Defendant EOS CCA’s Motion to Dismiss (Doc. 43) is || DENIED. 6 IT IS FURTHER ORDERED that Defendant EOS CCA shall file an answer—or other responsive pleading, if still ttmely—within 14 days from the date of this order. 8 Dated this 12th day of June, 2020. 9 10 11 ‘ / fj A 12 James A. Teilborg 13 Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-