White v. Las Vegas Metropolitan Police Department ( 2019 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ROBERT WHITE, ) 4 ) Plaintiff, ) Case No.: 2:19-cv-00386-GMN-NJK 5 vs. ) ) ORDER 6 LAS VEGAS METROPOLITAN POLICE ) 7 DEPARTMENT, et al., ) ) 8 Defendants. ) ) 9 10 Pending before the Court is Defendant Shade Tree’s (“Defendant’s”) Motion to Dismiss, 11 (ECF No. 7). Plaintiff Robert White (“Plaintiff”) filed a Response, (ECF No. 14), and 12 Defendant filed a Reply, (ECF No. 16). Also pending before the Court is Plaintiff’s Motion for 13 Extension of Time to Serve Defendants, (ECF No. 15). For the reasons discussed below, the 14 Court DENIES Defendant’s Motion to Dismiss and GRANTS nunc pro tunc Plaintiff’s 15 Motion for Extension of Time. 16 I. BACKGROUND 17 This case arises from events beginning on March 5, 2017, when police officers with the 18 Las Vegas Police Department arrived at Plaintiff’s residence in response to calls about 19 domestic violence between Plaintiff and Andria Joseph. (Compl. ¶¶ 5–28, ECF No. 1). Upon 20 arrival, the police noted minor injuries and created a report detailing a battery offense. (Id. 28– 21 60). Plaintiff alleges that he was eventually incarcerated for domestic violence, though Joseph 22 was not. Additionally, based on the arrest and imprisonment, Defendant allegedly terminated 23 its employment with Plaintiff. (Id. ¶¶ 61–62, 109–112). 24 On March 6, 2019, Plaintiff filed his Complaint against Defendant, Las Vegas 25 Metropolitan Police Department (“LVMPD”), Sherriff Joseph Lombardo, several officers with 1 the LVMPD, and Andria Joseph’s estate. Specific to Defendant, Plaintiff alleges that it 2 wrongfully terminated him as an employee and failed to properly investigate the truth of the 3 domestic violence charges, arrest, and incarceration. (Id. ¶¶ 109–112). 4 The Court issued a summons to Plaintiff when he filed his Complaint in order for him to 5 serve it upon all Defendants within 90 days. On June 5, 2019, the Court notified Plaintiff that 6 “this action may be dismissed without prejudice . . . unless proof of service is filed with the 7 clerk by 07/05/2019.” (Not. Intent to Dismiss, ECF No. 5). Plaintiff then filed proof of service 8 as to Defendant on July 3, 2019. (Mot. Dismiss 2:18–19, ECF No. 7). However, in light of 9 Plaintiff’s failure to serve Defendant within the 90-day window under Federal Rule of Civil 10 Procedure 4(m), Defendant filed the instant Motion seeking dismissal of Plaintiff’s Complaint. 11 (Id. 2:19–23). Thereafter, on August 22, 2019, Plaintiff filed his Response to Defendant’s 12 Motion and a Counter-Motion for an extension of time to serve all Defendants, (ECF No. 15). 13 II. LEGAL STANDARD 14 Courts have broad discretion to extend time for service under Federal Rule of Civil 15 Procedure 4(m). Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2003). The Supreme Court 16 has stated that the 90–day period for service contained in FRCP 4(m) “operates not as an outer 17 limit subject to reduction, but as an irreducible allowance.” Henderson v. United States, 517 18 U.S. 654, 661 (1996). Moreover, if the plaintiff shows good cause for the failure to effect 19 service within the 90-day window, “the court must extend the time for service for an 20 appropriate period.” Fed. R. Civ. P. 4(m). 21 III. DISCUSSION 22 Defendant moves for the Court to dismiss it as a party in Plaintiff’s Complaint due to 23 Plaintiff’s failure to serve it within 90 days of the Complaint’s filing. (Mot. Dismiss 3:2–11). 24 Defendant adds that Plaintiff has not shown good cause for his failure to comply with FRCP 25 4(m)’s requirements, and thus an extension need not be awarded. (Id.). In response, Plaintiff 1 contends that he mistakenly thought Nevada state rules governed service of process, which 2 would provide 120 days for service. (Resp. 3:12–15). Accordingly, Plaintiff seeks an extension 3 of FRCP 4(m)’s deadline so that Plaintiff can be given 120 days to serve Defendant. An 4 extension of 120 days would mean that Plaintiff’s service of Defendant on July 3, 2019, is 5 timely. (Mot. Extension 5:14–16, ECF No. 15). 6 The Court finds that an extension of time for Plaintiff to serve Defendant with the 7 Complaint is appropriate. Though Defendant argues that Plaintiff has not shown good cause 8 for an extension, courts in this District recognize that FRCP 4(m) “authorizes the court to 9 relieve a plaintiff of the consequences of an application of [Rule 4(m)] even if there is no good 10 cause shown.” Fisher v. TheVegasPackage.com, Inc., No. 2:19-cv-01613-JAD-VCF, 2019 WL 11 6828295, at *1 (D. Nev. Dec. 12, 2019) (quoting Fed. R. Civ. P. 4(m), Advisory Committee 12 Notes, 1993 Amendments). Here, Plaintiff complied with the Court’s initial warning about 13 dismissal if service did not occur by July 5, 2019. (Not. Intent to Dismiss, ECF No. 5). The 14 ultimate delay in service was therefore minimal and far different than circumstances in other 15 cases cited by Defendant where untimely service warranted dismissal. (Mot. Dismiss 3:17–28) 16 (citing Wilhelm v. Yott, No. 3:09-cv-488-RCJ-RAM, 2010 WL 1416898, at *2 (D. Nev. Mar. 17 30, 2010), where the plaintiff completed service 422 days after filing the complaint.). Also, 18 Defendant does not demonstrate sufficient prejudice for dismissal; and the prejudice to Plaintiff 19 would be severe. 20 Accordingly, the Court declines to dismiss Plaintiff’s Complaint based on a failure to 21 serve Defendant within 90 days of the Complaint’s filing. Moreover, the Court will extend the 22 service requirement nunc pro tunc for 120 days from the Complaint’s filing date of March 6, 23 2019. Plaintiff should recognize, however, that his pro se status alone will not serve as an 24 excuse for additional failures to follow procedural rules. Cf. Jacobsen v. Filler, 790 F.2d 1362, 25 1 1364 (9th Cir. 1986) (stating that pro se litigants in an ordinary civil case should not be treated 2 more favorably than attorneys of record in reference to procedural rules). 3 IV. CONCLUSION 4 IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, (ECF No. 7), is 5 DENIED. 6 IT IS FURTHER ORDERED that Plaintiff’s Motion for Extension of Time, (ECF No. 7 15), is GRANTED nunc pro tunc. 8 DATED this __1_8__ day of December, 2019. 9 10 ___________________________________ Gloria M. Navarro, District Judge 11 United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25