Aranda v. Phoenix, City of

Filing 11

ORDER dismissing without prejudice the Complaint (Doc. 1 ) pursuant to Rule 4(m), Fed. R. Civ. P. The Clerk shall terminate the action. Signed by Magistrate Judge Eileen S Willett on 9/15/15. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ralph Isaac Aranda,

No. CV-14-02787-PHX-ESW
Plaintiff,

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v.

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ORDER

Phoenix, City of,

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Defendant.

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The Court issued an Order on August 17, 2015 requiring Plaintiff to show good

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cause why his case should not be dismissed pursuant to Rule 4(m), Fed. R. Civ. P. (Doc.

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9). On August 31, 2015, Plaintiff filed a letter (Doc. 10) stating that Plaintiff was

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diagnosed with HIV in July 2014, was suspended from employment on April 22, 2015,

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and was terminated on May 15, 2015. Plaintiff stated, “I’m having financial difficulties

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since my termination and I can’t afford to retain a lawyer.” (Doc. 10 at 1)

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Plaintiff filed his Complaint on December 29, 2014 (Doc. 1). Pursuant to Rule

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4(m), Fed. R. Civ. P., Plaintiff had 120 days from December 29, 2014 within which to

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serve the Complaint on the defendant. If, however, the Plaintiff shows good cause for

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failing to timely serve the Complaint, the Court must extend the time for accomplishing

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service. Fed. R. Civ. P. 4(m); Mann v. Am. Airlines, 324 F.3d 1088, 1090 n.2 (9th Cir.

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2003). At a minimum, “good cause” means excusable neglect. Boudette v. Barnette, 923

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F.2d 754, 755-56 (9th Cir. 1991). The good cause exception to Rule 4(m), Fed. R. Civ.

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P., applies “only in limited circumstances” and is not satisfied by “inadvertent error or

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ignorance of the governing rules.” Hamilton v. Endell, 981 F.2d 1062, 1065 (9th Cir.

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1992) (citing Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985)); see also Townsel v.

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Contra Costa, 820 F.2d 319, 320-21 (9th Cir. 1987) (holding that ignorance of Rule 4 is

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not good cause for untimely service and affirming dismissal under Rule 4(m) despite

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statute of limitations having run making dismissal effectively with prejudice). Pro se

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litigants are required to follow the same rules of procedure that attorneys follow. See

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King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); see also Ghazali v. Moran, 46 F.3d 52,

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53-54 (9th Cir. 1995) (per curiam) (failure of pro se litigant to follow procedural rules

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justified dismissal of the civil rights case). The purpose of Rule 4(m), Fed. R. Civ. P., is

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to encourage and enforce diligence in the prosecution of one’s lawsuit. See Wei, 763

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F.2d at 372. The burden of proving good cause to extend time to serve is on the Plaintiff.

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Rule 4(m), Fed. R. Civ. P.

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Here, the Court notes that Plaintiff filed his Complaint after his diagnosis in July

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2014. Service of process was due prior to the Plaintiff’s termination of employment. In

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addition, Plaintiff had an employment lawyer assisting him with his suspension in April

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2015 (Doc. 10 at 16). An April 24, 2015 doctor’s note indicates Plaintiff suffers from

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several “chronic but manageable medical conditions.” (Id. at 18). Plaintiff was able to

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file EEOC Complaints on April 10, 2015 and June 29, 2015. (Id. at 6-7). Plaintiff’s only

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stated reason for failing to comply with Rule 4(m), Fed. R. Civ. P., and not serving

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defendant for over eight months is an inability to afford to retain a lawyer. Plaintiff’s

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own submitted documents are inconsistent with his stated reason. Nor is hiring a lawyer

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necessary to effectuate service of process.

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A district court’s discretion to either grant an extension of time in which to effect

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service or dismiss a case for failure to timely serve pursuant to Rule 4(m), Fed. R. Civ.

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P., is broad. In Re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001). The Ninth Circuit has

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articulated several factors a court may consider in deciding whether to exercise its

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discretion to extend time, including “a statute of limitations bar, prejudice to the

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defendant, actual notice of a lawsuit, and eventual service.” Efaw v. Williams, 473 F.3d

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1038, 1041 (9th Cir. 2007) (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383

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(7th Cir. 1998)).

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Plaintiff has filed multiple EEOC actions, the last as recent as June 29, 2015. The

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Plaintiff’s Complaint is insufficient on its face to determine whether it was timely filed in

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the first instance. However, dismissal without prejudice now would result in a dismissal

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with prejudice of the allegations set forth in the Complaint as Plaintiff’s allegations

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reference a time frame of November 2012 to June 2013. Delay in prosecuting the brief,

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conclusory allegations set forth in the Complaint is prejudicial to the Defendant. Plaintiff

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has not indicated that the Defendant has actual notice of this lawsuit in District Court.

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Nor does Plaintiff give any indication that he has attempted service or will soon effect

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service.

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Therefore, the Court concludes that good cause has not been shown to excuse

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Plaintiff’s failure to prosecute his case and timely serve the Complaint as required by the

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Federal Rules of Civil Procedure. Plaintiff has failed to meet his burden of proof to

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extend time to effect service of process. In addition, the Court in its discretion declines to

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extend the time to serve. Therefore,

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IT IS ORDERED dismissing without prejudice the Complaint (Doc. 1) pursuant
to Rule 4(m), Fed. R. Civ. P.

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The Clerk of Court shall administratively terminate the action.

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Dated this 15th day of September, 2015.

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Honorable Eileen S. Willett
United States Magistrate Judge

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