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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    1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Patricia Snyder, an individual, on behalf of herself and John Snyder, deceased, 10 No. CV12-1405 PHX DGC ORDER Plaintiff, 11 12 v. 13 United States of America, 14 15 Defendant. 16 17 Plaintiff Patricia Snyder filed a complaint against the United States of America on 18 June 29, 2012. Doc. 1. Rule 4(i) of the Federal Rules of Civil Procedure requires a party 19 seeking to serve the United States to serve a copy of the summons and complaint on the 20 United States Attorney for the district in which the action is brought and on the Attorney 21 General of the United States. Fed. R. Civ. P. 4(i). Additionally, Rule 4(m) provides a 22 120-day time limit for service. 23 Plaintiff served the United States Attorney for the District of Arizona on 24 October 29, 2012 (Doc. 8), but failed to serve the Attorney General of the United States 25 at Washington, D.C. within 120-days of initiating this action. The Court issued an order 26 on December 14, 2012, noting that Plaintiff had failed to properly serve Defendant within 27 the time required by Rule 4(m), and directing the Clerk of the Court to terminate the 28 matter on December 28, 2012, without further leave, if Plaintiff failed to show good     1 cause for her failure to serve beforehand. Doc. 9. 2 Plaintiff served the Attorney General of the United States at Washington, D.C. on 3 December 18, 2012. Doc. 11-1. Plaintiff did not respond, however, to the Court’s 4 December 14, 2012, Order (Doc. 9), requiring Plaintiff to show good cause for her failure 5 to serve Defendant in accordance with Rule 4(m). 6 Defendant has filed a motion to dismiss the complaint for failure to serve as 7 required by Rule 4(m). Doc. 12. The motion is fully briefed. No party has requested 8 oral argument. For the reasons set forth below, the Court will deny the motion. 9 I. Discussion. 10 Rule 4(m) provides that “the court shall extend the time for service” upon a 11 showing of “good cause.” Plaintiff asserts that good cause exists because as the time for 12 service approached, she had to seek new counsel, and, due to this confusion, service was 13 not accomplished until December 18, 2012. Doc. 13 at 2. Plaintiff’s counsel filed a 14 motion to withdraw on July 8, 2012 (Doc. 6), which the Court denied on July 10, 2012 15 (Doc. 7) for failure to comply with Local Rule of Civil Procedure 83.3(b). Since July 16 2012, there has been no motion to withdraw or notice of substitution of Plaintiff’s 17 counsel. “Good cause generally does not exist . . . when a plaintiff merely encounters 18 difficulties in completing service, such as ‘failure to receive a waiver of formal service, 19 ignorance of the rule, the absence of prejudice to the defendant, office moves or personal 20 problems, the belief that the time requirement was only technical, the filing of an 21 amended complaint, inadvertence of counsel, or the expenditure of efforts that fall short 22 of real diligence by the serving party.’” Dema v. Snell & Wilmer, L.L.P., No. CV-07-473- 23 PHX-DGC, 2007 WL 2287841, at *1 (D. Ariz. Aug. 8, 2007) (quoting 4B Charles Alan 24 Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 1137 (2002)). 25 The Court finds that Plaintiff’s lack of service falls into this category. Plaintiff has failed 26 to explain how her counsel’s failed attempt to withdraw precluded her from timely 27 serving Defendant. 28 The Ninth Circuit has held, however, that district courts have broad discretion -2-     1 under Rule 4(m) to extend time for service even without a showing of good cause. See 2 United States v. 2,164 Watches, 366 F.3d 767, 772 (9th Cir. 2004). This holding is 3 consistent with the Advisory Committee Notes to Rule 4(m), which “authorizes the court 4 to relieve a plaintiff of the consequences of an application of [Rule 4(m)] even if there is 5 no good cause shown.” (1993 Amendments). Given that both Parties agree Defendant 6 was given actual notice of the lawsuit within 120-days (Doc. 13 at 2; Doc. 15 at 3), that 7 Defendant has suffered no prejudice as a result of Plaintiff’s failure to timely serve the 8 Attorney General in Washington, D.C. (Doc. 13 at 2; Doc. 15 at 3 n. 1), and that Plaintiff 9 would suffer prejudice if the action were now dismissed (Doc. 13 at 2; Doc. 15 at 3), the 10 Court will exercise its discretion and excuse Plaintiff’s untimely service. See Efaw v. 11 Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (noting that “[d]istrict courts have broad 12 discretion to extend time for service under Rule 4(m)” and that “[i]n making extension 13 decisions under Rule 4(m) a district court may consider factors like a statute of 14 limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual 15 service.” (internal quotation marks and citations omitted)). 16 Plaintiff failed to comply with this Court’s order (Doc. 9) directing her to show 17 good cause for failing to comply with Rule 4(m). Although Plaintiff has now served 18 Defendant in compliance with Rule 4(i), this compliance does not remedy her direct 19 violation of a Court order. 20 familiarize themselves with the Federal Rules of Civil Procedure and the Local Rules of 21 Civil Procedure. Further disregard of the Court’s order will result in sanctions. The Court advises Plaintiff and Plaintiff’s Counsel to 22 The Court will not allow this matter to languish. Defendant’s answer is due 60 23 days from the date of this order. See Fed. R. Civ. P. 12(a)(2). The Court will schedule a 24 Rule 16 Case Management Conference by another order. 25 IT IS ORDERED that Defendant’s motion for dismissal (Doc. 12) is denied. 26 Dated this 13th day of February, 2013. 27 28 -3-

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