Torres v. Colvin

Filing 17

ORDER, Plaintiff's request for an Extension of Service of Process 16 is granted; Plaintiff's time to properly serve the Commissioner with process is hereby extended, nunc pro tunc, to March 17, 2014. Signed by Magistrate Judge Lawrence O Anderson on 6/13/14.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Carlos Guerrero Torres,
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Plaintiff,
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vs.
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Carolyn W. Colvin, Acting
Commissioner of Social Security
Administration,

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Defendant.
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No. CV-13-2300-PHX-LOA
ORDER

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This appeal comes before the Court on the Plaintiff’s Response to Order to Show

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Good Cause and Request for Extension of Service of Process. (Doc. 16) The Commissioner

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has not responded to Plaintiff’s Response or appeared in this action.

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In his Response to the OSC, Plaintiff’s counsel informs the Court that the original

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attorney on this case unexpectedly left his employment with the law firm of Snow, Carpio

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& Weekley, PLC at the end of last December just after the Amended Complaint was filed.

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(Id.) Another attorney was to take over the former attorney’s Social Security practice, but

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she was not yet licensed or registered in the District Court. As a stop-gap, Mr. Carpio

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stepped in as the attorney of record on the case, but was not initially involved with the case.

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When the service of process was due, the attorney who planned on taking over this Social

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Security appeal had emergency surgery and a contract attorney was called in to assist with

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this load. This resulted in the case being served six days late. (Id. at 2)

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Plaintiff filed his complaint on November 11, 2013, appealing the Commissioner’s

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adverse ruling at the administrative level of his claim for Social Security disability benefits.

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(Doc. 1) After screening the complaint pursuant to 28 U.S.C. § 1915(e)(2), the Court ordered

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Plaintiff to file an amended complaint because it failed to state a claim upon which relief

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could be granted. See Duryea v. Social Sec. Admin., 2012 WL 1983344, at *3 (D. Ariz. June

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4, 2012) (citing Hinton v. Social Sec. Admin., 2011 WL 3489663, at *1 (D. Ariz. Aug. 9,

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2011); Rhett v. New Jersey State Sup. Ct., 260 Fed. Appx. 513 (3rd Cir. 2008). (Doc. 6 at 2)

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The complaint did not identify with specificity the legal errors made by the ALJ or Appeals

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Council. Plaintiff filed the amended complaint on December 9, 2013. (Doc. 8) Plaintiff

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represents he served the Commissioner with the amended complaint “[o]n March 17, 2014

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- six days after the 120 days expired on March 11, 2014.” (Doc. 16 at 1, Exhibits (“Exhs.”)

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1 and 2)

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The filing of an amended complaint does not restart the 120-day service period

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against a defendant named in the original complaint under Rule 4(m), Fed.R.Civ.P. See

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Bivins v. Ryan, 2013 WL 321847, at *1 (D. Ariz. Jan. 28, 2013) (citing, e.g., Bolden v. City

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of Topeka, Kansas, 441 F.3d 1129, 1148 (10th Cir. 2006) (the 120-day period provided by

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Rule 4(m) is not restarted by the filing of an amended complaint except as to those

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defendants newly added in the amended complaint” ) (emphasis added); McGuckin v. United

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States, 918 F.2d 811, 813 (9th Cir. 2006).

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A district court has broad discretion in deciding whether to extend time for service

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of process. U.S. v. 164 Watches, More or Less Bearing on Registered Trademark of Guess?

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Inc., 366 F.3d 767, 772 (9th Cir. 2004); In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001).

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A district court may, for instance, extend time for service retroactively after the 120-day

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service period has expired. Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003).

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If the court does not find good cause to extend time for service as contemplated under Rule

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4(m), a court may extend time for service upon a showing of excusable neglect. Lemoge v.

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U .S., 587 F.3d 1188, 1198 (9th Cir. 2009) (citing In re Sheehan, 253 F.3d 507, 512-14 (9th

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Cir. 2001)). Factors to consider in the exercise of that wide discretion are, inter alia, whether

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the defendant suffered no prejudice in the delay of service and would the plaintiff be

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severely prejudiced if his complaint were dismissed. Id. (quoting Boudette v. Barnette, 923
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F.2d 754, 756 (9th Cir. 1991)).

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The Court finds that excusable neglect resulted in Plaintiff’s failure to serve the

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Commissioner within 120 days after the complaint was filed. The Court will grant the

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Plaintiff’s motion and retroactively extend the service deadline to March 17, 2014. The

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Court does not address whether Plaintiff has properly served the Commissioner or opine

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when the Commissioner’s appearance in this appeal is required. See Rules 4(i), 12(a)(2),

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Fed.R.Civ.P. Plaintiff and his counsel, however, are forewarned that, due to the age of this

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appeal, compliance with the Court’s Social Security Scheduling Order will be strictly

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enforced.

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Based on the foregoing,

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IT IS ORDERED that Plaintiff’s request for an Extension of Service of Process,

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doc. 16, is GRANTED. Plaintiff’s time to properly serve the Commissioner with process is

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hereby extended, nunc pro tunc, to March 17, 2014.

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Dated this 13th day of June, 2014.

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