Reishus, et al. v. Almaraz, et al

Filing 100

ORDER and ORDER TO SHOW CAUSE; the Joint Motion to Quash Service of Process Upon Defendant Eduardo Merino 97 is granted; the Joint Request for Order Regarding Testimony of Eduardo Merino 97 is denied without prejudice; the Court's 2/23/11 Or der 99 is vacated to the extent that it directed Defendants Almaraz, EA Trucking, their non-party liability insurance, and defense counsel to file a status report; Plaintiffs shall properly serve Mr Merino with process or shall show cause by 3/31/1 1 why Mr Merino should not be dismissed from this lawsuit; absent timely notice to the Court of proper service or a showing of good cause, Mr Merino will be dismissed as a party to this lawsuit with prejudice. Signed by Magistrate Judge Lawrence O Anderson on 2/25/11. (REW)

Reishus, et al. v. Almaraz, et al

Doc. 100

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Oliver Reishus and Roxanne Brinker,) husband and wife, ) ) Plaintiffs, ) ) vs. ) ) Efran Almaraz and Alejandra Estrada,) individually as husband and wife, d/b/a EA) Trucking; Paulo Egusquiza and Jane Doe) Egusquiza, individually and as husband) and wife, d/b/a Best Tires Distributors;) Eduardo Merino, a single man, ) ) Defendants. ) _________________________________ )

No. CV-10-0760-PHX-LOA ORDER AND ORDER TO SHOW CAUSE

This matter is before the Court on the parties' Joint Motion to Quash Service of 18 Process Upon Defendant Eduardo Merino and Request for Order Regarding Testimony of 19 Eduardo Merino. (Doc. 97) 20 Plaintiffs attempted to serve Eduardo Merino through Truck Process Agents of 21 America ("TPAA"). TPAA accepted service of the Amended Complaint and Summons, 22 which named Mr. Merino as a defendant. In the pending joint motion, the parties agree 23 that TPAA did not have authority to accept service on behalf of Mr. Merino, and that 24 service on TPAA was insufficient to effect lawful service upon Mr. Merino. (Doc. 97) 25 In view of the parties' agreement that service on Eduardo Merino was insufficient, the 26 Court will grant the joint motion to quash service of process upon him. 27 28

Dockets.Justia.com

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A. Improper Service When a plaintiff fails to serve a defendant in accordance with Federal Rule of Civil Procedure 4, and does not show good cause for such failure, the district court "on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Rule 4, Fed.R.Civ.P.; Stanley v. Goodwin, 475 F.Supp.2d 1026, 1034-35 (D.Haw. 2006), aff'd, 262 F. App'x 786 (9th Cir. 2007). "[B]ut if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Rule 4, Fed. R.Civ.P. "District courts have broad discretion to extend time for service under Rule 4(m)." Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). Rule 4(m) "requires a district court to grant an extension of time when the plaintiff shows good cause for the delay," but it " permits the district court to grant an extension even in the absence of good cause." Id. at 1040 (emphases in original). "In making extension decisions under Rule 4(m) a district court may consider factors `like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.'" Id. at 1041 (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998)). Because Mr. Merino has not been properly served within 120 days of the filing of the Second Amended Complaint on September 30, 2010, doc. 53, which added him as a party, the Court will order Plaintiffs to properly serve Mr. Merino with process on or before March 31, 2011, or Plaintiffs shall show cause on or before the same date why Mr. Merino should not be dismissed from this lawsuit. Absent timely notice to the Court of lawful service or a showing of good cause, Mr. Merino will be dismissed with prejudice as a party to this lawsuit. Dismissal of Mr. Merino from this lawsuit would remove any doubt that this District Court may not have complete diversity and subject matter jurisdiction over this case. The parties also request that the Court enter an order regarding the use of Mr. Merino's testimony at trial and expert disclosures relating to Mr. Merino's testimony. The parties' representations during the Rule 16 conference and prior filings indicate that -2-

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they have been unable to locate Mr. Merino. (doc. 99 discussing efforts to locate Mr. Merino) Because Mr. Merino's whereabouts are currently unknown, the Court finds it premature to enter any orders regarding the use of his testimony or related matters. The deadlines set forth in the Scheduling Order, as amended on February 2, 2011, are firm and binding. (docs. 18, 91) However, the Court would consider motions to modify relevant deadlines1 or enter appropriate orders pertaining to Mr. Merino's testimony in the event he is located through the exercise of due diligence and in the absence of evidence of bad faith. Accordingly, IT IS ORDERED that the Joint Motion to Quash Service of Process Upon Defendant Eduardo Merino, doc. 97, is GRANTED. IT IS FURTHER ORDERED that the Joint Request for Order Regarding Testimony of Eduardo Merino, doc. 97, is DENIED without prejudice. IT IS FURTHER ORDERED that the Court's February 23, 2011 Order, doc. 99, is VACATED to the extent that it directed Defendants Almaraz, EA Trucking, their nonparty liability insurance, and defense counsel to file a status report "providing the details of their efforts to determine Eduardo Merino's whereabouts, the non-privileged information discovered in that regards, his willingness to cooperate with Plaintiffs' discovery efforts and comply with this order." (Doc. 99) IT IS FURTHER ORDERED that Plaintiffs shall properly serve Mr. Merino with process on or before Thursday, March 31, 2011 or Plaintiffs shall show cause on or before Thursday, March 31, 2011 why Mr. Merino should not be dismissed from this lawsuit. Absent timely notice to the Court of proper service or a showing of good cause

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Motions to extend deadlines must comply with Federal Rule of Civil Procedure -3-

6(b).

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before the March 31, 2011, Mr. Merino will be dismissed as a party to this lawsuit with prejudice. Dated this 25th day of February, 2011.

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