Ashford et al v. Douglas County et al
Filing
52
MEMORANDUM AND ORDER that the plaintiffs' motion to alter or amend the judgment 37 is granted in part. The portion of the Court's Order 36 dismissing the amended complaint as to defendants McDermott, Vaughn, Gleason, Riley, Burns, and Bowie is vacated. The amended complaint remains dismissed as to defendants Wheelock, Frost, and Douglas County. Ordered by Senior Judge Lyle E. Strom. (JSF)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
TIMOTHY L. ASHFORD, TIMOTHY
L. ASHFORD, P.C.L.L.O.,
)
)
)
Plaintiffs,
)
)
v.
)
)
DOUGLAS COUNTY, STATE OF
)
NEBRASKA, JOHN DOES, 1-1000, )
JANE DOES, 1-1000, W. RUSSELL )
BOWIE, In His Official
)
Capacity, CRAIG MCDERMOTT, In )
His Official Capacity, HORACIO)
WHEELOCK, Individually and
)
in his official capacity,
)
THOMAS RILEY, Individually
)
and in his official capacity, )
DENISE FROST, Individually
)
and in her official capacity, )
JAMES GLEASON, Individually
)
and in his official capacity, )
TIMOTHY BURNS, Individually
)
and in his official capacity, )
and DERICK VAUGHN,
)
Individually and in his
)
official capacity,
)
)
Defendants.
)
______________________________)
8:15CV8
MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion
(Filing No. 37) to alter or amend the judgment pursuant to
Federal Rule of Civil Procedure 59(e).
Defendant Douglas County
filed a brief in opposition (Filing No. 46), to which the
plaintiffs replied (Filing No. 48).
In addition, State
Defendants Denise Frost, and the Honorables Craig McDermott,
Derick Vaughn, Russell Bowie, Timothy Burns, James Gleason, and
Horacio Wheelock filed an opposition to the plaintiffs’ motion
(Filing No. 47).
The plaintiffs replied to the opposition
(Filing No. 49).
After reviewing the motion, briefs, and
applicable law, the Court finds as follows.
Background and Procedural History
The plaintiffs filed a complaint against Douglas
County, the State of Nebraska, John Does, 1-1000, and Jane Does,
1-1000 on January 12, 2015 (Filing No. 1).
On September 1, 2015,
the plaintiffs filed a Second Amended Complaint including
additional defendants (Filing No. 31).
The plaintiffs had 120
days from the day of the filing of the Second Amended Complaint
to complete service.
On December 29, 2015, summons were issued
as to defendants Denise Frost, Thomas Riley, the State of
Nebraska, and the Honorables W. Russell Bowie, Timothy Burns,,
James Gleason, Craig McDermott, Derick Vaughn, and Horacio
Wheelock (Filing No. 33).
On December 30, 2015, the deadline for
serving summons, the plaintiffs filed a motion to extend the time
to serve the defendants (Filing No. 34).
The same day, defendant
Douglas County filed a brief in opposition to the motion to
extend (Filing No. 35).
The Court denied the plaintiffs’ motion
to extend (Filing No. 36).
At the time of the order, the
plaintiffs had failed to file any executed summons for the named
defendants.
In addition, this Court found that the plaintiffs
failed to show good cause for failure to timely serve.
The
amended complaint was dismissed as to all defendants (Id.).
The plaintiffs move this Court to alter or amend the
judgment pursuant to Federal Rule of Civil Procedure 59(e).
-2-
The
plaintiffs argue that the defendants were served within the 120day limit for service of process, and therefore, dismissal of the
case was improper.
Defendant Douglas County opposes the motion
to alter or amend.
Douglas County points out that they have yet
to be served by the plaintiffs, and therefore should be dismissed
from the lawsuit.
In addition, the State Defendants also object
to the plaintiffs’ motion to alter or amend.
On December 31,
2015, the plaintiffs mailed summons to defendants Bowie, Burns,
Gleason, Vaughn, Riley, and McDermott.
plaintiffs served defendant Wheelock.
On January 6, 2016,
As of today, there is no
returned executed summons for defendant Frost or Douglas County.
Law
Under Federal Rule of Civil Procedure 59, a party may
motion the Court to alter or amend a judgment no later than 28
days after the entry of judgment.
Fed.R.Civ.P. 59(e).
Rule
59(e) motions serve a limited function of correcting “manifest
errors of law or fact or to present newly discovered evidence.”
United States v. Metropolitan St. Louis Sewer Dist., 440 F.3d
930, 933 (8th Cir. 2006)(quoting Innovative Home Health Care v.
P.T.-O.T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th
Cir. 1998)).
Rule 4 provides that a “summons must be served with a
copy of the complaint.
The plaintiff is responsible for having
the summons and complaint served within the time allowed by Rule
4(m) and must furnish the necessary copies to the person who
makes service.”
Fed.R.Civ.P. 4(c)(1).
-3-
An individual within the
United States may be served “following state law for serving a
summons in an action brought in courts of general jurisdiction in
the state where the district court is located or where service is
made.”
Fed.R.Civ.P. 4(e)(1).
“Unless service is waived, proof
of service must be made to the court.”
Fed.R.Civ.P. 4(l)(1).
Under Nebraska law, “[a]n individual party other than a
person under the age of fourteen years, may be served by
personal, residence, certified mail, or designated delivery
service.”
Rev. Stat. § 25-508.01(1).
If service is made “under
Rule 5(b)(2)(C), (D),(E), or (F), 3 days are added after the
period would otherwise expire under Rule 6(a).”
6(d).
Fed.R.Civ.P.
Rule 5(b)(2)(C) includes “mailing it to the person’s last
known address -- in which event service is complete upon
mailing.”
Discussion
The plaintiffs move this Court to alter or amend the
judgment which denied the plaintiffs’ motion for extension to
serve the defendants and dismissed the amended complaint (See
Filing No. 36).
The plaintiffs’ deadline to serve the defendants
was December 30, 2015.
As of January 11, 2016, the Court was not
aware that any defendants were served because the plaintiffs
failed to provide proof of service to the Court as required by
Rule 4.
As a result, the Court dismissed the complaint against
the defendants for failing to serve and failing to show good
cause for failure to timely serve.
-4-
On January 15, 2016, the plaintiffs filed returned
executed summons for some of the named defendants.
The summons
for defendants McDermott, Vaughn, Gleason, Riley, Burns, and
Bowie were mailed on December 31, 2015.
The summons for
defendant Wheelock was mailed on January 6, 2016.
Defendants
Douglas County and Frost have yet to be served.
Under Rule 6(d), three days additional time is added
for certain kinds of service.
Therefore, the summons that were
mailed on December 31, 2015, fall into the three additional days.
The Court was unaware of the fact that the plaintiffs served some
of the defendants on December 31, 2015, when it entered its order
dismissing the complaint.
Therefore, the Court will amend its
judgment in part because defendants McDermott, Vaughn, Gleason,
Riley, Burns, and Bowie were timely served.
Defendant Wheelock was not timely served.
In addition,
defendants Frost and Douglas County have not been served as of
today.
The Court will not alter or amend its judgment as to the
motion to extend to serve the defendants.
Therefore, the second
amended complaint is still dismissed as to defendants Wheelock,
Frost, and Douglas County.
Accordingly,
IT IS ORDERED:
1) Plaintiffs’ motion to alter or amend the judgment
(Filing No. 37) is granted in part.
The portion of the Court’s
Order (Filing No. 36) dismissing the amended complaint as to
defendants McDermott, Vaughn, Gleason, Riley, Burns, and Bowie is
vacated.
-5-
2)
The amended complaint remains dismissed as to
defendants Wheelock, Frost, and Douglas County.
DATED this 9th day of May, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?