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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Jose Carlos Guerrero Torres, 9 Plaintiff, 10 vs. 11 12 Carolyn W. Colvin, Acting Commissioner of Social Security Administration, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-13-2300-PHX-LOA ORDER 15 This appeal comes before the Court on the Plaintiff’s Response to Order to Show 16 Good Cause and Request for Extension of Service of Process. (Doc. 16) The Commissioner 17 has not responded to Plaintiff’s Response or appeared in this action. 18 In his Response to the OSC, Plaintiff’s counsel informs the Court that the original 19 attorney on this case unexpectedly left his employment with the law firm of Snow, Carpio 20 & Weekley, PLC at the end of last December just after the Amended Complaint was filed. 21 (Id.) Another attorney was to take over the former attorney’s Social Security practice, but 22 she was not yet licensed or registered in the District Court. As a stop-gap, Mr. Carpio 23 stepped in as the attorney of record on the case, but was not initially involved with the case. 24 When the service of process was due, the attorney who planned on taking over this Social 25 Security appeal had emergency surgery and a contract attorney was called in to assist with 26 this load. This resulted in the case being served six days late. (Id. at 2) 27 Plaintiff filed his complaint on November 11, 2013, appealing the Commissioner’s 28 adverse ruling at the administrative level of his claim for Social Security disability benefits. 1 (Doc. 1) After screening the complaint pursuant to 28 U.S.C. § 1915(e)(2), the Court ordered 2 Plaintiff to file an amended complaint because it failed to state a claim upon which relief 3 could be granted. See Duryea v. Social Sec. Admin., 2012 WL 1983344, at *3 (D. Ariz. June 4 4, 2012) (citing Hinton v. Social Sec. Admin., 2011 WL 3489663, at *1 (D. Ariz. Aug. 9, 5 2011); Rhett v. New Jersey State Sup. Ct., 260 Fed. Appx. 513 (3rd Cir. 2008). (Doc. 6 at 2) 6 The complaint did not identify with specificity the legal errors made by the ALJ or Appeals 7 Council. Plaintiff filed the amended complaint on December 9, 2013. (Doc. 8) Plaintiff 8 represents he served the Commissioner with the amended complaint “[o]n March 17, 2014 9 - six days after the 120 days expired on March 11, 2014.” (Doc. 16 at 1, Exhibits (“Exhs.”) 10 1 and 2) 11 The filing of an amended complaint does not restart the 120-day service period 12 against a defendant named in the original complaint under Rule 4(m), Fed.R.Civ.P. See 13 Bivins v. Ryan, 2013 WL 321847, at *1 (D. Ariz. Jan. 28, 2013) (citing, e.g., Bolden v. City 14 of Topeka, Kansas, 441 F.3d 1129, 1148 (10th Cir. 2006) (the 120-day period provided by 15 Rule 4(m) is not restarted by the filing of an amended complaint except as to those 16 defendants newly added in the amended complaint” ) (emphasis added); McGuckin v. United 17 States, 918 F.2d 811, 813 (9th Cir. 2006). 18 A district court has broad discretion in deciding whether to extend time for service 19 of process. U.S. v. 164 Watches, More or Less Bearing on Registered Trademark of Guess? 20 Inc., 366 F.3d 767, 772 (9th Cir. 2004); In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001). 21 A district court may, for instance, extend time for service retroactively after the 120-day 22 service period has expired. Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). 23 If the court does not find good cause to extend time for service as contemplated under Rule 24 4(m), a court may extend time for service upon a showing of excusable neglect. Lemoge v. 25 U .S., 587 F.3d 1188, 1198 (9th Cir. 2009) (citing In re Sheehan, 253 F.3d 507, 512-14 (9th 26 Cir. 2001)). Factors to consider in the exercise of that wide discretion are, inter alia, whether 27 the defendant suffered no prejudice in the delay of service and would the plaintiff be 28 severely prejudiced if his complaint were dismissed. Id. (quoting Boudette v. Barnette, 923 -2- 1 F.2d 754, 756 (9th Cir. 1991)). 2 The Court finds that excusable neglect resulted in Plaintiff’s failure to serve the 3 Commissioner within 120 days after the complaint was filed. The Court will grant the 4 Plaintiff’s motion and retroactively extend the service deadline to March 17, 2014. The 5 Court does not address whether Plaintiff has properly served the Commissioner or opine 6 when the Commissioner’s appearance in this appeal is required. See Rules 4(i), 12(a)(2), 7 Fed.R.Civ.P. Plaintiff and his counsel, however, are forewarned that, due to the age of this 8 appeal, compliance with the Court’s Social Security Scheduling Order will be strictly 9 enforced. 10 Based on the foregoing, 11 IT IS ORDERED that Plaintiff’s request for an Extension of Service of Process, 12 doc. 16, is GRANTED. Plaintiff’s time to properly serve the Commissioner with process is 13 hereby extended, nunc pro tunc, to March 17, 2014. 14 Dated this 13th day of June, 2014. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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