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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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James K. Trueman,

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Plaintiff,
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vs.
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Jason Johnson, Unknown Avena, )
and Unknown Molina,
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Defendants.
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No. CIV 09-2179-PHX-RCB(DKD)
O R D E R

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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

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1
As the caption now accurately reflects, all other defendants have been
terminated from this action.

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Fed. R. Civ. P. 4(m) permits, for the reasons set forth below, the

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court grants plaintiff one final opportunity to serve those

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defendants.

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Background

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Plaintiff alleges that on December 6, 2007, he sustained back

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injuries when he slipped on “wet linoleum floor” in the facility

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dining hall.

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filed his original complaint on September 22, 2009, which this

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court dismissed albeit with leave to amend.

Amend. Co. (Doc. 17) at 3, ¶ 3.

Plaintiff timely

Ord. (Doc. 11).

On

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August 16, 2010, plaintiff filed his FAC.

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4, 2010, this court, among other things, ordered unserved

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defendants Avena, Johnson, and Molina to answer count II of the

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FAC.

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until approximately December 20, 2010, at the latest, by which to

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obtain a waiver of service or complete service upon those three

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defendants.

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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

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service packets to the Clerk’s Office for service by the United

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States Marshals Service.

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Service forms (“USM-285 forms”) plaintiff named the defendant to be

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served, indicated that they should be served at the SCC, and

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provided the facility address.

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December 2, 2010, the three USM-285 forms were returned as

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unexecuted; and each had the same notation:

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RS[;] 11/30/10 - Spoke with Tracy Thompson (Warden Secret[a]ry),

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she stated [Avena/Molina/Johnson] no longer works at [SCC]

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facility.”

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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
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had “been transferred to another facility[,]” United States

2

Magistrate Judge David K. Duncan “required . . . defense counsel

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. . . to advise the court and Plaintiff regarding this matter.”

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Ord. (Doc. 22) at 1:17-208.

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defendants to notify plaintiff if they “are still employed with the

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ADOC [Arizona Department of Corrections][.]” Id. at 1:20.

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he granted plaintiff an extension of time until February 16, 2011,

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in which to complete service.

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The Magistrate Judge further ordered

Finally,

Id. at 2:, ¶ 2.

Plaintiff then moved to compel the provision of defendants’

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names and addresses.

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that an attorney of record had entered an appearance for

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defendants, the Magistrate Judge ordered the law firm of Jones

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Skelton & Hochuli (the “Jones firm”), which “routinely represents

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. . . [CCA] and [its] employees[,]” to provide plaintiff, under

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seal, with defendants’ “work . . . or home addresses[.]”

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(Doc. 24) at 1:20-23; 2:4-5.

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Mot. (Doc. 23).

Because it did not appear

Ord.

On February 4, 2011, the Jones firm “advis[ed] that Defendants

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are not and were not employees of CCA.”

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2:4-5.

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were employees of an entity called Canteen Correctional Services,

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which contracted with CCA to provide canteen serves at CCA’s

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Saguaro Correctional Center during times relevant to Plaintiff’s

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Complaint.”

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address for Canteen Correctional Services’ parent corporation in

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Charlotte, North Carolina.

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Jones firm also mailed a copy of that notice to plaintiff.

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2:15-19.

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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
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“ha[d] fourteen (14) days to return the service packets[]” to the

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Clerk’s Office for service.

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plaintiff received a copy of that notice via mail, he had until

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February 22, 2011, by which to return the completed service packet

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to the Clerk’s Office.

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Office received his service packets on March 1, 2011.

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1, 2011).

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USM-285, but he did not provide an address for any of them.

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Docs. 26, 27 and 28.

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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

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service packets were all returned as unexecuted.

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forms uniformly indicate that the server “spoke” with a “manager at

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Canteen Corrections who stated subject no longer works there” and

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the forwarding addresses were “unknown.”

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Those USM-285

Id.

Based upon this series of events, on August 1, 2011, the

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Magistrate Judge noted that it had “been nearly a year and

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Defendants ha[d] not been served.

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Consequently, he ordered that “Plaintiff shall have thirty (30)

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days from [that date] to show good cause why this case should not

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be dismissed pursuant to LRCiv 41.1, . . . , for want of

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prosecution and Rule 4(m), Fed.R.Civ.P.”

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concluded:

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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.

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Although plaintiff did not directly respond to that OSC prior

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to the August 31, 2011 deadline, on August 16, 2011, he did file a

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“Motion for Leave to Amend, and Stay of Execution for Cour[t]’s

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Order to Show Cause[.]” Pl.’s Mot. (Doc. 30) at 1.

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“belief” that defendants “still reside[] in the State of
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Based upon his

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Arizona[,]” plaintiff “request[ed]” that the court not . . .

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dismiss his complaint for lac[k] of service against the

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defendants.”

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plaintiff’s motion in its entirety.

Id.

On October 26, 2011, the Magistrate Judge denied
Ord. (Doc. 31) at 1:22-23.

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Discussion

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Upon its sua sponte review of this case, and with notice

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having been given to plaintiff by the Magistrate Judge’s OSC, the

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issue is whether or not to grant plaintiff an extension of time to

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serve defendants pursuant to Fed.R.Civ.P. 4(m).

“A federal court

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is without personal jurisdiction over a defendant unless the

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defendant has been served in accordance with Fed.R.Civ.P. 4.”

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Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1183, 1135

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(9th Cir. 2009) (internal quotation marks and citations omitted).

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Rule (m) specifically provides in relevant part that:

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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.

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Fed.R.Civ.P. 4(m).

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parties and their attorneys to be diligent in prosecuting their

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cause of action.”

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*2 (D.Or. Aug. 13, 2010) (citing, inter alia, Fimbres v. United

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States, 833 F.2d 138, 139 (9th Cir. 1987)).

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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

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v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009).

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is mandatory[.]”

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the plain language of that Rule, “the district court must extend

Id. (citation and footnote omitted).

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“The first
Based upon

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time for service upon a showing of good cause.”

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footnote omitted).

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omitted).

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established, the district court may extend time for service upon a

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showing of excusable neglect.”

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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

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“requires[,]” the court will first consider whether on this record

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there is good cause, thus mandating an extension of time for

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service under Rule 4(m).

See In re Sheehan, 253 F.3d at 512.

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Courts must determine whether good cause “has been shown on a case

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by case basis.”

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I.

Id. (citation omitted).

Mandatory Extension of Time

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“Good cause to avoid dismissal may be demonstrated by

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establishing, at minimum, excusable neglect.”

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1198, n. 3 (citation omitted) (emphasis added).

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the court will assume arguendo the existence of excusable neglect.

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Based upon that assumption, now it will address the other factors

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“a plaintiff may be required to show . . . to bring the excuse to

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the level of good cause:

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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.

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Lemoge, 587 F.3d at

Lemoge, 587 F.3d at 1198.

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A.

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It is undisputed that none of the three remaining defendants

Actual Notice

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have

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they have not been served with process.

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defendants also have not “personally received actual notice of

“personally received actual notice of th[is] lawsuit” in that

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See id.

Evidently

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th[is] lawsuit” by any means, as they have never appeared or in any

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way contacted the court.

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factor does not support a finding of good cause.

See id.

Therefore, the actual notice

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B.

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In contrast, the seeming lack of prejudice to defendants

No Prejudice to Defendants

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weighs in favor of a finding of good cause.

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court described good cause and excusable neglect as two distinct

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standards, it also indicated that the two standards overlap.”

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Savings, 2010 WL 3222112, at *3.

“[W]hile the Lemoge

Golf

Given that “overlap” and the

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“conflation” of those two legal standards[,]” id., although the

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court now is evaluating good cause, it will look to case law

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discussing prejudice to a defendant in the excusable neglect

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context.

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prejudice by itself is not sufficient to establish good cause.”

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United States v. 2,164 Watches, More or Less, Bearing a Registered

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Trademark of Guess?, Inc., 366 F.3d 776, 773 n. 2 (9th Cir. 2004)

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(citation omitted) (emphasis in original).

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In so doing, the court is fully cognizant that “[l]ack of

Prejudice to defendants “requires greater harm than simply

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that relief would delay resolution of the case.”

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at 1196 (citations omitted).

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time to serve would mean that defendants “would have lost a quick

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victory,” which they would obtain if this court were to dismiss

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this action for failure to timely serve.

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1225.

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prejudicial to deny relief, however.

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being forced to litigate on the merits is not prejudicial in this

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context[,]” where, as explained below, there is far greater

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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

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See id.

Further, “[m]erely

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of limitations would bar re-filing.

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4623937, at *4 (Bankr.D.Ariz. Sept. 29, 2011)(citing Lemoge, 587

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F.3d at 1196).

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relatively minor.

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C.

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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

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upon dismissal of his complaint – weighs heavily in plaintiff

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Trueman’s favor.

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be a dismissal without prejudice.”

“A dismissal for untimely service is required to
2,164 Watches, 366 F.3d at 773

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(citation omitted); see also Fed. R. Civ. P. 4(m).

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dismissal ordinarily enables the plaintiff to refile the complaint

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and effect timely service.”

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dismissal without prejudice would severely prejudice plaintiff

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because it appears that the statute of limitations would bar his

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section 1983 claim.

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Id.

“Such a

In the present case, however, a

In a section 1983 action such as this, the applicable statute

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of limitations “is the personal injury statute of limitations of

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the state in which the cause of action arose.”

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v. City of Los Angeles, 631 F.3d 1031, 1041 (9th Cir. 2011)

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(citing, inter alia, Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct.

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1091, 166 L.Ed.2d 973 (2007)).

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limitations for personal injury claims.

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Civish, 382 F.3d 969, 974 (9th Cir. 2004) (citing, inter alia,

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Ariz.Rev.Stat. § 12-542).

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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

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2

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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

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of limitations, it appears that dismissal of this case for failure

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to serve would prevent him from re-filing this action.

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inability to re-file constitutes severe prejudice to plaintiff

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Trueman, which, in turn, weighs in favor of a finding of good

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cause.

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WL 2462112, at *6 (S.D.Cal. Aug. 27, 2007) (severe prejudice shown,

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supporting good cause, where plaintiff would be “severely

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prejudiced if motion [to dismiss for failure to timely serve] is

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granted because a significant portion of his claims will be [time]

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barred[]”); see also Alamzad v. Lufthansa Consulting GMBH, 2005 WL

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1869400, at *3 (N.D.Cal. Aug. 4, 2005) (good cause existed to

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extend plaintiff’s time for service because, inter alia, plaintiff

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would suffer severe prejudice by dismissal given that “the statutes

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of limitations appear to have expired[]”).

That

See Quinn v. Cornerstone Strategic Advisors, L.L.C., 2007

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After focusing on the three other factors pertinent to a

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finding of good cause (and again assuming excusable neglect), it is

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a close call as to whether good cause has been shown here, so as to

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“force a mandatory extension of time” to serve defendants under

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Rule 4(m).

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would result in severe prejudice to plaintiff Trueman, and there is

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no readily apparent prejudice to defendants.

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defendants’ lack of actual notice of this lawsuit, erring on the

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side of caution, this court cannot find that good cause exists, so

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as to justify a mandatory extension of time under Rule 4(m).

See Golf Savings, 2010 WL 3222112, at *3.

Dismissal

Nonetheless, given

That

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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.

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does not end the court’s inquiry, however.

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II.

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Discretionary Extension of Time to Serve
In the absence of good cause, the court must proceed to the

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second step of the analysis, and decide whether, in its discretion,

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to extend the prescribed time for service of the FAC.

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Circuit has declined to “articulate a specific test that a court

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must apply in exercising its discretion under Rule 4(m)[,]” noting

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“that, under the terms of the rule, the court’s discretion is

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broad.”

“The Ninth

Gill v. Waikiki Lanai, Inc., 2011 WL 3648772, at *7

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(D.Hawai’i Aug. 18, 2011) (quoting In re Sheehan, 253 F.3d at 513

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(citation omitted)).

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the fact that Rule 4(m)’s 120-day time frame for service “operates

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not as an outer limit subject to reduction, but as an irreducible

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allowance.”

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S.Ct. 1638, 134 L.Ed.2d 880 (1996) (internal quotation marks and

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citation omitted).

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of the district court after the 120-day period has expired.

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Rather, Rule 4(m) explicitly permits a district court to grant an

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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)).

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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[,]”

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however.

Id.

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neglect.

See Lemoge, 587 F.3d at 1197 (citation omitted) (emphasis

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added) (“[I]f good cause is not established, the district court may

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extend time for service upon a showing of excusable neglect.”).

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“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

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equitable test[]” based upon Pioneer Inv. Servs. Co. v. Brunswick

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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.

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1997).

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Cir. 2010) (citations omitted).

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under Federal Rule of Bankruptcy Procedure 9006(b), and Briones

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involved a Rule 60(b) motion for relief from judgment.

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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

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contexts, though, including in deciding whether excusable neglect

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has been shown under Rule 4(m).

12

See Lemoge, 587 F.3d at 1198.

That four factor equitable test requires, at a minimum,

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examination of: “(1) the danger of prejudice to the opposing party;

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(2) the length of the delay and its potential impact on judicial

15

proceedings; (3) the reason for the delay; and (4) whether the

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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).

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‘excusable’ . . . is at bottom an equitable one, taking account of

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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.

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Pioneer/Briones Factors
1.

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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

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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.

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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
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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

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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.

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16

Copies to plaintiff pro se and counsel of record

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