Trueman v. Hawaii, State of et al

Filing 32

ORDER that pursuant to Fed.R.Civ.P. 4(m), plaintiff is GRANTED sixty (60) days from the date of this Order in which to conduct discovery as to the names and addresses of defendants Unknown Avena, Jason Johnson and Unknown Molina, and to provide written notice to this court as to the foregoing, or that plaintiff was unable to discover that information. Signed by Judge Robert C Broomfield on 12/21/11. (DMT)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 James K. Trueman, ) ) Plaintiff, ) ) vs. ) ) Jason Johnson, Unknown Avena, ) and Unknown Molina, ) ) Defendants. ) ) No. CIV 09-2179-PHX-RCB(DKD) O R D E R 18 19 20 Introduction Plaintiff James K. Trueman is confined in the Saguaro 21 Correctional Center (“SCC”), a Corrections Corporation of America 22 (“CCA”) facility in Eloy, Arizona. This matter arises following 23 the court’s review of plaintiff’s pro se civil rights action filed 24 pursuant to 42 U.S.C. § 1983. Plaintiff has yet to serve the 25 remaining defendants, Unknown Avena, Jason Johnson and Unknown 26 Molina,1 with the first amended complaint (“FAC”). Nonetheless, as 27 28 1 As the caption now accurately reflects, all other defendants have been terminated from this action. 1 Fed. R. Civ. P. 4(m) permits, for the reasons set forth below, the 2 court grants plaintiff one final opportunity to serve those 3 defendants. 4 Background 5 Plaintiff alleges that on December 6, 2007, he sustained back 6 injuries when he slipped on “wet linoleum floor” in the facility 7 dining hall. 8 filed his original complaint on September 22, 2009, which this 9 court dismissed albeit with leave to amend. Amend. Co. (Doc. 17) at 3, ¶ 3. Plaintiff timely Ord. (Doc. 11). On 10 August 16, 2010, plaintiff filed his FAC. 11 4, 2010, this court, among other things, ordered unserved 12 defendants Avena, Johnson, and Molina to answer count II of the 13 FAC. 14 until approximately December 20, 2010, at the latest, by which to 15 obtain a waiver of service or complete service upon those three 16 defendants. 17 Thereafter, on October Additionally, under the terms of that order, plaintiff had See Ord. (Doc. 18) at 6, ¶ (5). Complying with that order, plaintiff timely returned the 18 service packets to the Clerk’s Office for service by the United 19 States Marshals Service. 20 Service forms (“USM-285 forms”) plaintiff named the defendant to be 21 served, indicated that they should be served at the SCC, and 22 provided the facility address. 23 December 2, 2010, the three USM-285 forms were returned as 24 unexecuted; and each had the same notation: 25 RS[;] 11/30/10 - Spoke with Tracy Thompson (Warden Secret[a]ry), 26 she stated [Avena/Molina/Johnson] no longer works at [SCC] 27 facility.” 28 Id. On each of the United States Marshal See Docs. 19, 20, and 21. On “11/29/2010 - Moved to Docs. 19, 20, and 21. Because it was “unclear” as to whether any of these defendants -2- 1 had “been transferred to another facility[,]” United States 2 Magistrate Judge David K. Duncan “required . . . defense counsel 3 . . . to advise the court and Plaintiff regarding this matter.” 4 Ord. (Doc. 22) at 1:17-208. 5 defendants to notify plaintiff if they “are still employed with the 6 ADOC [Arizona Department of Corrections][.]” Id. at 1:20. 7 he granted plaintiff an extension of time until February 16, 2011, 8 in which to complete service. 9 The Magistrate Judge further ordered Finally, Id. at 2:, ¶ 2. Plaintiff then moved to compel the provision of defendants’ 10 names and addresses. 11 that an attorney of record had entered an appearance for 12 defendants, the Magistrate Judge ordered the law firm of Jones 13 Skelton & Hochuli (the “Jones firm”), which “routinely represents 14 . . . [CCA] and [its] employees[,]” to provide plaintiff, under 15 seal, with defendants’ “work . . . or home addresses[.]” 16 (Doc. 24) at 1:20-23; 2:4-5. 17 Mot. (Doc. 23). Because it did not appear Ord. On February 4, 2011, the Jones firm “advis[ed] that Defendants 18 are not and were not employees of CCA.” 19 2:4-5. 20 were employees of an entity called Canteen Correctional Services, 21 which contracted with CCA to provide canteen serves at CCA’s 22 Saguaro Correctional Center during times relevant to Plaintiff’s 23 Complaint.” 24 address for Canteen Correctional Services’ parent corporation in 25 Charlotte, North Carolina. 26 Jones firm also mailed a copy of that notice to plaintiff. 27 2:15-19. 28 Not. (Doc. 25) at 1:24-25; The Jones firm did advise, however, that defendants “are or Id. at 1:25-28. The Jones firm also provided the Id. at 2:1-5. On February 4, 2011, the Id. at In accordance with the Magistrate Judge’s order, plaintiff -3- 1 “ha[d] fourteen (14) days to return the service packets[]” to the 2 Clerk’s Office for service. 3 plaintiff received a copy of that notice via mail, he had until 4 February 22, 2011, by which to return the completed service packet 5 to the Clerk’s Office. 6 Office received his service packets on March 1, 2011. 7 1, 2011). 8 USM-285, but he did not provide an address for any of them. 9 Docs. 26, 27 and 28. 10 Ord. (Doc. 24) at 5-6. Because Plaintiff was a week late; the Clerk’s Doc. (March Plaintiff did name the defendant to be served on each See About four and a half months later, on July 21, 2011, those 11 service packets were all returned as unexecuted. 12 forms uniformly indicate that the server “spoke” with a “manager at 13 Canteen Corrections who stated subject no longer works there” and 14 the forwarding addresses were “unknown.” 15 Those USM-285 Id. Based upon this series of events, on August 1, 2011, the 16 Magistrate Judge noted that it had “been nearly a year and 17 Defendants ha[d] not been served. 18 Consequently, he ordered that “Plaintiff shall have thirty (30) 19 days from [that date] to show good cause why this case should not 20 be dismissed pursuant to LRCiv 41.1, . . . , for want of 21 prosecution and Rule 4(m), Fed.R.Civ.P.” 22 concluded: 23 action shall be dismissed.” OSC (Doc. 29 at 2:12). Id. at 2:16-19. That OSC “If Plaintiff fails to comply with this Order, this Id. at 2:2:19-20. 24 Although plaintiff did not directly respond to that OSC prior 25 to the August 31, 2011 deadline, on August 16, 2011, he did file a 26 “Motion for Leave to Amend, and Stay of Execution for Cour[t]’s 27 Order to Show Cause[.]” Pl.’s Mot. (Doc. 30) at 1. 28 “belief” that defendants “still reside[] in the State of -4- Based upon his 1 Arizona[,]” plaintiff “request[ed]” that the court not . . . 2 dismiss his complaint for lac[k] of service against the 3 defendants.” 4 plaintiff’s motion in its entirety. Id. On October 26, 2011, the Magistrate Judge denied Ord. (Doc. 31) at 1:22-23. 5 Discussion 6 Upon its sua sponte review of this case, and with notice 7 having been given to plaintiff by the Magistrate Judge’s OSC, the 8 issue is whether or not to grant plaintiff an extension of time to 9 serve defendants pursuant to Fed.R.Civ.P. 4(m). “A federal court 10 is without personal jurisdiction over a defendant unless the 11 defendant has been served in accordance with Fed.R.Civ.P. 4.” 12 Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1183, 1135 13 (9th Cir. 2009) (internal quotation marks and citations omitted). 14 Rule (m) specifically provides in relevant part that: 15 16 17 18 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 the defendants 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. 19 20 Fed.R.Civ.P. 4(m). 21 parties and their attorneys to be diligent in prosecuting their 22 cause of action.” 23 *2 (D.Or. Aug. 13, 2010) (citing, inter alia, Fimbres v. United 24 States, 833 F.2d 138, 139 (9th Cir. 1987)). 25 This “deadline for service is designed to force Golf Savings Bank v. Walsh, 2010 WL 3222112, at There are “two avenues for relief[]” under Rule 4(m). Lemoge 26 v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). 27 is mandatory[.]” 28 the plain language of that Rule, “the district court must extend Id. (citation and footnote omitted). -5- “The first Based upon 1 time for service upon a showing of good cause.” 2 footnote omitted). 3 omitted). 4 established, the district court may extend time for service upon a 5 showing of excusable neglect.” 6 Id. (citation and “The second is discretionary[.]” Id. (citation Notwithstanding Rule 4(m), “if good cause is not Id. (citation omitted). Engaging in the “two-step analysis” which the Ninth Circuit 7 “requires[,]” the court will first consider whether on this record 8 there is good cause, thus mandating an extension of time for 9 service under Rule 4(m). See In re Sheehan, 253 F.3d at 512. 10 Courts must determine whether good cause “has been shown on a case 11 by case basis.” 12 I. Id. (citation omitted). Mandatory Extension of Time 13 “Good cause to avoid dismissal may be demonstrated by 14 establishing, at minimum, excusable neglect.” 15 1198, n. 3 (citation omitted) (emphasis added). 16 the court will assume arguendo the existence of excusable neglect. 17 Based upon that assumption, now it will address the other factors 18 “a plaintiff may be required to show . . . to bring the excuse to 19 the level of good cause: 20 For the moment, (1) the party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed. 21 22 23 Lemoge, 587 F.3d at Lemoge, 587 F.3d at 1198. 24 A. 25 It is undisputed that none of the three remaining defendants Actual Notice 26 have 27 they have not been served with process. 28 defendants also have not “personally received actual notice of “personally received actual notice of th[is] lawsuit” in that -6- See id. Evidently 1 th[is] lawsuit” by any means, as they have never appeared or in any 2 way contacted the court. 3 factor does not support a finding of good cause. See id. Therefore, the actual notice 4 B. 5 In contrast, the seeming lack of prejudice to defendants No Prejudice to Defendants 6 weighs in favor of a finding of good cause. 7 court described good cause and excusable neglect as two distinct 8 standards, it also indicated that the two standards overlap.” 9 Savings, 2010 WL 3222112, at *3. “[W]hile the Lemoge Golf Given that “overlap” and the 10 “conflation” of those two legal standards[,]” id., although the 11 court now is evaluating good cause, it will look to case law 12 discussing prejudice to a defendant in the excusable neglect 13 context. 14 prejudice by itself is not sufficient to establish good cause.” 15 United States v. 2,164 Watches, More or Less, Bearing a Registered 16 Trademark of Guess?, Inc., 366 F.3d 776, 773 n. 2 (9th Cir. 2004) 17 (citation omitted) (emphasis in original). 18 In so doing, the court is fully cognizant that “[l]ack of Prejudice to defendants “requires greater harm than simply 19 that relief would delay resolution of the case.” 20 at 1196 (citations omitted). 21 time to serve would mean that defendants “would have lost a quick 22 victory,” which they would obtain if this court were to dismiss 23 this action for failure to timely serve. 24 1225. 25 prejudicial to deny relief, however. 26 being forced to litigate on the merits is not prejudicial in this 27 context[,]” where, as explained below, there is far greater 28 prejudice to plaintiff Trueman because it appears that the statute Lemoge, 587 F.3d Allowing plaintiff an extension of See Bateman, 231 F.3d at The loss of such a quick victory is not sufficiently -7- See id. Further, “[m]erely 1 of limitations would bar re-filing. 2 4623937, at *4 (Bankr.D.Ariz. Sept. 29, 2011)(citing Lemoge, 587 3 F.3d at 1196). 4 relatively minor. 5 C. 6 See In re Beck, 2011 WL Thus, any prejudice to the defendants here is Severe Prejudice to Plaintiff The third good cause factor – severe prejudice to plaintiff 7 upon dismissal of his complaint – weighs heavily in plaintiff 8 Trueman’s favor. 9 be a dismissal without prejudice.” “A dismissal for untimely service is required to 2,164 Watches, 366 F.3d at 773 10 (citation omitted); see also Fed. R. Civ. P. 4(m). 11 dismissal ordinarily enables the plaintiff to refile the complaint 12 and effect timely service.” 13 dismissal without prejudice would severely prejudice plaintiff 14 because it appears that the statute of limitations would bar his 15 section 1983 claim. 16 Id. “Such a In the present case, however, a In a section 1983 action such as this, the applicable statute 17 of limitations “is the personal injury statute of limitations of 18 the state in which the cause of action arose.” 19 v. City of Los Angeles, 631 F.3d 1031, 1041 (9th Cir. 2011) 20 (citing, inter alia, Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 21 1091, 166 L.Ed.2d 973 (2007)). 22 limitations for personal injury claims. 23 Civish, 382 F.3d 969, 974 (9th Cir. 2004) (citing, inter alia, 24 Ariz.Rev.Stat. § 12-542). 25 claim accrued on December 6, 2007,2 borrowing that Arizona statute Alamed Books, Inc. Arizona has a two year statute of Cholla Ready Mix, Inc. v. Because plaintiff Trueman’s section 1983 26 2 27 28 State law provides the applicable statute of limitations in a section 1983 action, but “[f]ederal law . . . governs when [that] claim accrues.” Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1996) (citation omitted). A section 1983 claim “accrues when the plaintiff knows, or should know, of the injury which is the basis -8- 1 of limitations, it appears that dismissal of this case for failure 2 to serve would prevent him from re-filing this action. 3 inability to re-file constitutes severe prejudice to plaintiff 4 Trueman, which, in turn, weighs in favor of a finding of good 5 cause. 6 WL 2462112, at *6 (S.D.Cal. Aug. 27, 2007) (severe prejudice shown, 7 supporting good cause, where plaintiff would be “severely 8 prejudiced if motion [to dismiss for failure to timely serve] is 9 granted because a significant portion of his claims will be [time] 10 barred[]”); see also Alamzad v. Lufthansa Consulting GMBH, 2005 WL 11 1869400, at *3 (N.D.Cal. Aug. 4, 2005) (good cause existed to 12 extend plaintiff’s time for service because, inter alia, plaintiff 13 would suffer severe prejudice by dismissal given that “the statutes 14 of limitations appear to have expired[]”). That See Quinn v. Cornerstone Strategic Advisors, L.L.C., 2007 15 After focusing on the three other factors pertinent to a 16 finding of good cause (and again assuming excusable neglect), it is 17 a close call as to whether good cause has been shown here, so as to 18 “force a mandatory extension of time” to serve defendants under 19 Rule 4(m). 20 would result in severe prejudice to plaintiff Trueman, and there is 21 no readily apparent prejudice to defendants. 22 defendants’ lack of actual notice of this lawsuit, erring on the 23 side of caution, this court cannot find that good cause exists, so 24 as to justify a mandatory extension of time under Rule 4(m). See Golf Savings, 2010 WL 3222112, at *3. Dismissal Nonetheless, given That 25 26 27 28 of [his] cause of action.” Id. (citation omitted). Here, as the FAC details, plaintiff Trueman was aware on December 6, 2007, that he had slipped on an allegedly wet floor and purportedly sustained back injuries as a result. His section 1983 cause of action therefore accrued on that date. The two year statute of limitations thus expired two years later, on approximately December 6, 2009. -9- 1 does not end the court’s inquiry, however. 2 II. 3 Discretionary Extension of Time to Serve In the absence of good cause, the court must proceed to the 4 second step of the analysis, and decide whether, in its discretion, 5 to extend the prescribed time for service of the FAC. 6 Circuit has declined to “articulate a specific test that a court 7 must apply in exercising its discretion under Rule 4(m)[,]” noting 8 “that, under the terms of the rule, the court’s discretion is 9 broad.” “The Ninth Gill v. Waikiki Lanai, Inc., 2011 WL 3648772, at *7 10 (D.Hawai’i Aug. 18, 2011) (quoting In re Sheehan, 253 F.3d at 513 11 (citation omitted)). 12 the fact that Rule 4(m)’s 120-day time frame for service “operates 13 not as an outer limit subject to reduction, but as an irreducible 14 allowance.” 15 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (internal quotation marks and 16 citation omitted). 17 of the district court after the 120-day period has expired. 18 Rather, Rule 4(m) explicitly permits a district court to grant an 19 extension of time to serve the complaint after that 120-day 20 period.” 21 (quoting Mann v. Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003) 22 (emphasis added by Mann court)). 23 In part, that broad discretion derives from Henderson v. United States, 517 U.S. 654, 661, 116 “On its face, Rule 4(m) does not tie the hands Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) A court’s discretion under Rule 4(m) is not “limitless[,]” 24 however. Id. 25 neglect. See Lemoge, 587 F.3d at 1197 (citation omitted) (emphasis 26 added) (“[I]f good cause is not established, the district court may 27 extend time for service upon a showing of excusable neglect.”). 28 “To determine whether a party’s failure to meet a deadline It must be predicated upon a finding of excusable - 10 - 1 constitutes ‘excusable neglect,’ courts must apply a four-factor 2 equitable test[]” based upon Pioneer Inv. Servs. Co. v. Brunswick 3 Assoc. Ltd., 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); 4 and Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 5 1997). 6 Cir. 2010) (citations omitted). 7 under Federal Rule of Bankruptcy Procedure 9006(b), and Briones 8 involved a Rule 60(b) motion for relief from judgment. 9 Circuit applies the Pioneer/Briones factors in a variety of Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Pioneer involved excusable neglect The Ninth 10 contexts, though, including in deciding whether excusable neglect 11 has been shown under Rule 4(m). 12 See Lemoge, 587 F.3d at 1198. That four factor equitable test requires, at a minimum, 13 examination of: “(1) the danger of prejudice to the opposing party; 14 (2) the length of the delay and its potential impact on judicial 15 proceedings; (3) the reason for the delay; and (4) whether the 16 movant acted in good faith.” 17 (citations omitted). 18 exclusive list[,]” however. 19 quotation marks and citation omitted). 20 prejudice a denial would cause to the movant must also be 21 considered, but it is not a fact that must be assessed in each and 22 every case.” 23 1072, 1092 (9th Cir. 2010) (internal quotation marks and citation 24 omitted). 25 ‘excusable’ . . . is at bottom an equitable one, taking account of 26 all relevant circumstances surrounding the party’s omission.” 27 Pioneer, 507 U.S. at 395. 28 Ahanchian, 624 F.3d at 1261 Those four enumerated factors are “not an Lemoge, 587 F.3d at 1195 (internal “In some circumstances, the S.E.C. v. Platforms Wireless Int’l Corp., 617 F.3d Thus, “what sorts of neglect will be considered Mindful that “a district court abuses its discretion if it - 11 - 1 does not consider each of the four Pioneer factors separately[,]” 2 PLU Investments, 2011 WL 1376192, at *2 (citing, inter alia, 3 Ahanchian, 624 F.3d at 1261), this court will proceed in exactly 4 that way. 5 “balancing the Pioneer/Briones factors[,]” it “may not apply per se 6 rules.” In so doing, the court is keenly aware that while See Ahanchian, 624 F.3d at 1261 (citation omitted). 7 A. 8 Pioneer/Briones Factors 1. 9 Prejudice to Opposing Party Here, any prejudice to the defendants is relatively minimal, 10 as already discussed. 11 the benefit of [the] expiration of the statute of limitations” does 12 “not constitute prejudice within the meaning of Fed.R.Civ.P. 4(m).” 13 Alamzad, 2005 WL 1869400, at *2 (citing Boley v. Kaymark, 123 F.3d Additionally, it is noteworthy that “losing 14 756, 758 (3rd Cir. 1997)). 15 Circuit,” this court agrees that “Boley is persuasive authority for 16 the proposition that the running of the statute of limitations 17 period does not assist” defendants in this equitable analysis. 18 id. 19 favor plaintiff, especially when contrasted to the severe prejudice 20 he is likely to sustain absent an extension of time for service. See Rather, the lack of prejudice to defendants tips decidedly in 21 22 “While not binding in the Ninth 2. Length of Delay and Impact The second Pioneer/Briones factor, too, supports a finding of 23 excusable neglect. 24 until roughly December 14, 2010, in which to serve his FAC. 25 plaintiff was granted an extension for time to serve until February 26 16, 2011. 27 inconsequential, given the procedural posture of this case and Pursuant to Rule 4(m), initially plaintiff had Defendants have yet to be served though. 28 - 12 - Later, While not 1 mindful of plaintiff’s pro se status,3 the length of delay and its 2 impact upon this litigation, also favors plaintiff. 3 First, admittedly granting an extension of time to serve would 4 cause further delay, but this action is in its infancy. 5 stands in sharp contrast to, for example, Khalafala v. Crowther, 6 2011 WL 5974627 (D.Ariz. Oct. 26, 2011), adopted, 2011 WL 5974537 7 (D.Ariz. Nov. 29, 2011); and Halloum v. Ryan, 2011 WL 5572622 8 (D.Ariz. Sept. 21, 2011), adopted, 2011 WL 557206 (D.Ariz. Nov. 6, 9 2011), where granting an extension of time in which to serve new It thus 10 defendants augured against a finding of excusable neglect. 11 of those cases, unlike here, granting such an extension would have 12 meant “resetting the schedule[s]” in cases “nearing completion.” 13 Khalafala, 2011 WL 5974627, at *3; Halloum, 2011 WL 5572622, at *2. 14 No scheduling orders for discovery or motion practice have been 15 entered in this case, much less such “deadlines [which] are about 16 to expire[.]” See Halloum, 2011 WL 5572622, at *2 (citation 17 omitted). 18 In both Additionally, another significant difference between Khalafala 19 and Halloum and the present action is that it has not been 20 proceeding apace with other served defendants. 21 thus is unlikely to substantially impact this litigation. 22 Accordingly, the court finds that the length of delay, particularly 23 when coupled with the minimal impact upon this proceeding, supports 24 a finding of excusable neglect. 25 (abuse of discretion to grant inmate plaintiff, who “was Any further delay Contra Efaw, 473 F.3d at 1041 26 27 28 3 Of course, that status does not excuse plaintiff from “follow[ing] the same rules of procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 5856, 567 (9th Cir. 1987) (citation omitted). - 13 - 1 represented by counsel for a significant portion of the seven 2 years,” 3 “the length of the delay was extraordinary[]” – seven years); 4 Quinn, 2007 WL 2462112, at *7 (declining to grant discretionary 5 extension of time because, inter alia, plaintiff did not effect 6 service until nearly three years after filing of the complaint). extension of time in which to serve defendant guards where 7 8 9 3. Reason for Delay Evidently the reason for the delay in service is that this pro se inmate plaintiff has been unable to locate defendants. 10 Plaintiff did undertake one effort to ascertain defendants’ 11 whereabouts when, on January 4, 2011, he filed a motion to compel 12 their names and addresses. 13 in pursuing defendants’ addresses through discovery. 14 plaintiff’s 15 delay, that reason does not support a finding of excusable neglect 16 taking into account all of the Pioneer/Briones factors and other 17 relevant considerations. Plaintiff could have been more diligent So although inability to locate defendants is a “reason” for 18 4. Good Faith 19 Turning to the fourth Pioneer/Briones factor, there is no 20 basis for concluding that plaintiff acted in bad faith, or was 21 engaging in gamesmanship, as opposed to simply being dilatory. 22 Therefore, this factor likewise favors plaintiff. 23 24 5. Severe Prejudice to Plaintiff As explained in discussing good cause, dismissing the FAC now 25 would, it appears, mean that the statute of limitations bars re- 26 filing. 27 the scope of the ‘prejudice’ inquiry when conducting analysis under 28 Rule 4(m) to include the prejudice that would be suffered by a Under these circumstances, the Ninth Circuit has “expanded - 14 - 1 plaintiff in the event of a dismissal for failure to timely 2 serve[.]” Lemoge, 587 F.3d at 1195. 3 expressly recognized that “[t]he district court's discretion is not 4 diminished when the statute of limitations would bar re-filing of 5 the suit if the district court decided to dismiss the case instead 6 of grant an extension.” 7 the advisory committee notes explicitly contemplate that a district 8 court might use its discretion to grant an extension in that very 9 situation: ‘Relief may be justified, for example, if the applicable Indeed, the Ninth Circuit has Mann, 324 F.3d at 1090. “To the contrary, 10 statute of limitations would bar the re-filed action.’” Id. at 11 1090-91 (quoting Fed.R.Civ.P. 4, Advisory Committee Note to 1993 12 Amendments, Subdivision (m)); see also De Tie v. Orange Cty., 152 13 F.3d 1109, 1111 n. 5 (9th Cir. 1998) (recognizing that an extension 14 may be warranted if the statute of limitations has run). 15 In fact, the Ninth Circuit has found that plaintiffs sustained 16 “the ultimate prejudice of being forever barred from pursuing their 17 claims[,]” absent a Rule 4(m) “because the statute of limitations 18 on their claim ha[d] run.” 19 extension of time to serve, plaintiff Trueman will suffer that same 20 “ultimate prejudice” because presumptively, at this juncture, the 21 two year statute of limitations has run on his section 1983 claim. 22 Consequently, although “[a] dismissal for untimely service is 23 required to be . . . without prejudice[,]” 2,164 Watches, 366 F.3d 24 at 773 (citation omitted), “[t]hat purpose would be frustrated” 25 where, as here, evidently “the statute of limitations has already 26 run[]” because “a dismissal intended to be without prejudice under 27 Rule 4(m) would essentially be with prejudice.” 28 Internal Revenue Service, 2006 WL 167558, at *4 (D.Ariz. Jan. 24, Lemoge, 587 F.3d at 1197. - 15 - Absent an See Carrillo v. 1 2006) (citing, inter alia, 2,164 Watches, 366 F.3d at 773). 2 “a Rule 4(m) dismissal would effectively cut off Plaintiff’s right 3 to redress.” Thus, Id. 4 The concern that the statute of limitations is a bar to 5 refiling in this case arguably carries even more weight given that 6 “the public policy favoring resolution on the merits is 7 ‘particularly important in civil rights cases[]’” such as this 8 section 1983 action. 9 393, 401 (9th Cir. 1998) (quoting Eldridge v. Block, 832 F.2d 1132, See Hernandez v. City of El Monte, 138 F.3d 10 1137 (9th Cir. 1987)). 11 for failure to timely serve pursuant to Rule 4(m) would result in 12 not only “severe prejudice” to plaintiff Trueman, but in the words 13 of the Ninth Circuit, he would sustain “the ultimate prejudice[.]” 14 See Lemoge, 587 F.3d at 1196. 15 prejudice inquiry heavily weighs in favor of a finding of excusable 16 neglect. 17 As is abundantly clear, dismissing the FAC Therefore this aspect of the Balancing the equities in light of the four explicit 18 Pioneer/Briones factors, only one – the reason for delay, does not 19 support a finding of excusable neglect. 20 particularly when coupled with the severe prejudice to plaintiff, 21 convince the court, in the exercise of its discretion, to grant 22 plaintiff Trueman an extension of time in which to serve defendants 23 pursuant to Fed. R. Civ. P. 4. 24 limits, however. 25 The other three factors, That extension is not without The court is fully aware that plaintiff is incarcerated and 26 proceeding pro se. 27 provide the United States Marshal with accurate and sufficient 28 information to effect service. It remains his responsibility, however, to See Boulware v. Ervin, 2010 WL - 16 - 1 5110445, at *1 (E.D.Cal. Dec. 8, 2010)(“[I]t is ultimately 2 [P]laintiff's responsibility to provide a name and address for each 3 defendant to be served in order for the Court to direct the Marshal 4 to serve process on a defendant.”) (internal quotation and 5 citations omitted); see also Walker v. Sumner, 14 F.3d 1415, 1422 6 (9th 7 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (requiring a 8 pro se prisoner plaintiff to have “furnished the information 9 necessary to identify the defendant”) (internal citation omitted). 10 Cir. 1994), overruled on other grounds by Sandin v. Conner, To that end, plaintiff is not precluded from attempting to 11 ascertain the full names and also the addresses of defendants 12 Unknown Avena, Jason Johnson, and Unknown Molina through discovery. 13 The court therefore grants plaintiff the opportunity to conduct 14 discovery for the limited purpose of ascertaining the foregoing 15 information. 16 this order in which to complete that discovery. 17 day time frame plaintiff shall file with the court a notice 18 indicating either: (1) that he has ascertained the names of 19 defendants and their addresses; (2) or that he has not. 20 plaintiff provides the names and addresses to the court for 21 service, the court shall issue an order directing service. 22 plaintiff does not comply with that time frame, this case shall be 23 dismissed “without prejudice,” subject to any statute of 24 limitations defense. 25 compliance with this order, as well as all court orders going 26 forward, and cautions plaintiff that it will not allow any further 27 extensions of time in which to serve defendants. 28 . . . Plaintiff shall have sixty (60) days from the date of Within that sixty Once If The court expects full and complete - 17 - 1 IT IS HEREBY ORDERED that pursuant to Fed.R.Civ.P. 4(m), 2 plaintiff is GRANTED sixty (60) days from the date of this Order in 3 which to conduct discovery as to the names and addresses of 4 defendants Unknown Avena, Jason Johnson and Unknown Molina, and to 5 provide written notice to this court as to the foregoing, or that 6 plaintiff was unable to discover that information. 7 DATED this 21st day of December, 2011. 8 9 10 11 12 13 14 15 16 Copies to plaintiff pro se and counsel of record 17 18 19 20 21 22 23 24 25 26 27 28 - 18 -

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