Vargas v. Snowflake Unified School District No. 5 et al

Filing 8

ORDER denying without prejudice 7 Motion for Extend time to serve. Signed by Senior Judge James A Teilborg on 3/17/2017.(TCA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Oscar Vargas,
Plaintiff,

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ORDER

v.

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No. CV-17-08035-PCT-JAT

Snowflake Unified School District No. 5, et
al.,

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Defendants.

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The Court now rules on Plaintiff Oscar Vargas’ motion requesting an extension of

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time to serve the Snowflake Unified School District (“the District”) with his complaint.

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(Doc. 7).

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Under Federal Rule of Civil Procedure (“Rule”) 4(m), a defendant must be served

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within 90 days after a complaint is filed. The Ninth Circuit Court of Appeals has

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explained that a district court must extend this time limit if a plaintiff shows good cause

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for doing so. Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009).

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Alternatively, a district court may, in its discretion, extend the time for service if the

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plaintiff has shown that the failure to serve was the result of excusable neglect. Id.

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Plaintiff’s motion does not show that good cause exists to extend the time to file.

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Moreover, there has been no determination that Plaintiff in fact served the wrong party;

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the District makes that argument in its motion to dismiss, which is still pending before

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this Court. (Doc. 4). The Court therefore finds that Plaintiff’s motion is not ripe.

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Similarly, the Court will not grant advanced permission for Plaintiff to serve the

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district by publication. “The decision whether to pursue personal service or service by

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publication is that of the plaintiff, not the court. Because the court does not preauthorize

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service by publication, the determination whether publication constitutes adequate service

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is made later in the case.” Ritchie v. Salvatore Gatto Partners, 222 P.3d 920, 923 n.4

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(Ariz. App. 2010) (internal citations omitted).

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For these reasons,

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IT IS ORDERED that Plaintiff’s motion to extend time to serve (Doc. 7) is

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DENIED, without prejudice.
Dated this 17th day of March, 2017.

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