Banks v. Lombardo ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 JAMES VINCENT BANKS, Case No. 2:20-cv-00556-APG-NJK 9 Plaintiff(s), Order 10 v. [Docket No. 13] 11 JOSEPH LOMBARDO, et al., 12 Defendant(s). 13 Pending before the Court is Plaintiff’s motion to extend the time to effectuate service on 14 several non-appearing defendants. Docket No. 13. LVMPD counsel subsequently appeared by 15 filing an answer for Defendant Holm. Docket No. 14. It appears that counsel now knows the 16 identity of at least some of the non-appearing defendants for whom the United States Marshal 17 Service was rebuffed in attempting service. See id. at ¶ 4 (admitting that “Risppo is employed by 18 LVMPD”); but see Docket No. 11 at 7 (summons returned unexecuted on the grounds that there 19 is no employee by the name of Risppo).1 Moreover, Plaintiff has provided additional information 20 as to the identities of the non-appearing defendants. Docket No. 12. 21 Given the circumstances, the Court DEFERS ruling on the motion to extend time to afford 22 LVMPD counsel an opportunity to accept service on behalf of any of the non-appearing 23 24 1 It would appear that some of the non-appearing defendants, particularly Defendants Miller and Rissippo, may be in default given the circumstances of the previous service attempt. 25 Compare Smith v. Saribay, 2021 WL 1824292, at *3 (D. Nev. Apr. 29, 2021) with Docket No. 12. The Court reemphasizes herein that there is an obligation to avoid unnecessary service costs. See 26 Estate of Darulis v. Garate, 401 F.3d 1060, 1063 (9th Cir. 2005) (discussing Fed. R. Civ. P. 4(d)(2)); see also Smith, 2021 WL 1824292, at *2 n.5 (“Gamesmanship in the effectuation of 27 service is disfavored in any context, but it would seem particularly ill-advised in the context of service that is being effectuated on behalf of a pro se prisoner by the United States Marshal Service 28 pursuant to a Court order at taxpayer expense during a pandemic”). 1} defendants. To that end, LVMPD counsel must file a notice by August 19, 2021, as to any of the 2|| non-appearing defendants for whom service is being accepted. With respect to any Defendant who waives service, an answer or other appropriate response to the complaint is due within 60 days of the issuance of this order. See Fed. R. Civ. P. 12(a)(1)(A)(i). With respect to any Defendant who does not waive service, the Court may impose the full costs of service that is later undertaken. 6 IT IS SO ORDERED. 7 Dated: August 4, 2021 Ze Nancy J.Koppe, 9 United States-Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28