Snyder v. United States of America

Filing 17

ORDER denying 12 Motion to Dismiss. Signed by Judge David G Campbell on 2/13/2013.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Patricia Snyder, an individual, on behalf of
herself and John Snyder, deceased,

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No. CV12-1405 PHX DGC
ORDER

Plaintiff,

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v.

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United States of America,

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Defendant.

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Plaintiff Patricia Snyder filed a complaint against the United States of America on

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June 29, 2012. Doc. 1. Rule 4(i) of the Federal Rules of Civil Procedure requires a party

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seeking to serve the United States to serve a copy of the summons and complaint on the

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United States Attorney for the district in which the action is brought and on the Attorney

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General of the United States. Fed. R. Civ. P. 4(i). Additionally, Rule 4(m) provides a

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120-day time limit for service.

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Plaintiff served the United States Attorney for the District of Arizona on

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October 29, 2012 (Doc. 8), but failed to serve the Attorney General of the United States

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at Washington, D.C. within 120-days of initiating this action. The Court issued an order

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on December 14, 2012, noting that Plaintiff had failed to properly serve Defendant within

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the time required by Rule 4(m), and directing the Clerk of the Court to terminate the

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matter on December 28, 2012, without further leave, if Plaintiff failed to show good

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cause for her failure to serve beforehand. Doc. 9.

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Plaintiff served the Attorney General of the United States at Washington, D.C. on

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December 18, 2012. Doc. 11-1. Plaintiff did not respond, however, to the Court’s

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December 14, 2012, Order (Doc. 9), requiring Plaintiff to show good cause for her failure

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to serve Defendant in accordance with Rule 4(m).

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Defendant has filed a motion to dismiss the complaint for failure to serve as

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required by Rule 4(m). Doc. 12. The motion is fully briefed. No party has requested

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oral argument. For the reasons set forth below, the Court will deny the motion.

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I.

Discussion.

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Rule 4(m) provides that “the court shall extend the time for service” upon a

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showing of “good cause.” Plaintiff asserts that good cause exists because as the time for

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service approached, she had to seek new counsel, and, due to this confusion, service was

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not accomplished until December 18, 2012. Doc. 13 at 2. Plaintiff’s counsel filed a

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motion to withdraw on July 8, 2012 (Doc. 6), which the Court denied on July 10, 2012

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(Doc. 7) for failure to comply with Local Rule of Civil Procedure 83.3(b). Since July

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2012, there has been no motion to withdraw or notice of substitution of Plaintiff’s

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counsel. “Good cause generally does not exist . . . when a plaintiff merely encounters

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difficulties in completing service, such as ‘failure to receive a waiver of formal service,

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ignorance of the rule, the absence of prejudice to the defendant, office moves or personal

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problems, the belief that the time requirement was only technical, the filing of an

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amended complaint, inadvertence of counsel, or the expenditure of efforts that fall short

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of real diligence by the serving party.’” Dema v. Snell & Wilmer, L.L.P., No. CV-07-473-

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PHX-DGC, 2007 WL 2287841, at *1 (D. Ariz. Aug. 8, 2007) (quoting 4B Charles Alan

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Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 1137 (2002)).

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The Court finds that Plaintiff’s lack of service falls into this category. Plaintiff has failed

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to explain how her counsel’s failed attempt to withdraw precluded her from timely

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serving Defendant.

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The Ninth Circuit has held, however, that district courts have broad discretion
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under Rule 4(m) to extend time for service even without a showing of good cause. See

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United States v. 2,164 Watches, 366 F.3d 767, 772 (9th Cir. 2004). This holding is

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consistent with the Advisory Committee Notes to Rule 4(m), which “authorizes the court

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to relieve a plaintiff of the consequences of an application of [Rule 4(m)] even if there is

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no good cause shown.” (1993 Amendments). Given that both Parties agree Defendant

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was given actual notice of the lawsuit within 120-days (Doc. 13 at 2; Doc. 15 at 3), that

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Defendant has suffered no prejudice as a result of Plaintiff’s failure to timely serve the

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Attorney General in Washington, D.C. (Doc. 13 at 2; Doc. 15 at 3 n. 1), and that Plaintiff

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would suffer prejudice if the action were now dismissed (Doc. 13 at 2; Doc. 15 at 3), the

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Court will exercise its discretion and excuse Plaintiff’s untimely service. See Efaw v.

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Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (noting that “[d]istrict courts have broad

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discretion to extend time for service under Rule 4(m)” and that “[i]n making extension

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decisions under Rule 4(m) a district court may consider factors like a statute of

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limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual

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service.” (internal quotation marks and citations omitted)).

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Plaintiff failed to comply with this Court’s order (Doc. 9) directing her to show

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good cause for failing to comply with Rule 4(m). Although Plaintiff has now served

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Defendant in compliance with Rule 4(i), this compliance does not remedy her direct

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violation of a Court order.

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familiarize themselves with the Federal Rules of Civil Procedure and the Local Rules of

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Civil Procedure. Further disregard of the Court’s order will result in sanctions.

The Court advises Plaintiff and Plaintiff’s Counsel to

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The Court will not allow this matter to languish. Defendant’s answer is due 60

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days from the date of this order. See Fed. R. Civ. P. 12(a)(2). The Court will schedule a

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Rule 16 Case Management Conference by another order.

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IT IS ORDERED that Defendant’s motion for dismissal (Doc. 12) is denied.

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Dated this 13th day of February, 2013.

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