Mitchell v. Skolnik et al

Filing 51

ORDER Granting 46 Motion to Compel the Address of DefendantWilliam Shaw. Status Report due by 10/14/2011. Signed by Magistrate Judge George Foley, Jr on 9/27/2011. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TARZ MITCHELL,

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Plaintiff,
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vs.
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HOWARD SKOLNIK, et al.,
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Defendants. )
__________________________________________)

Case No. 2:09-cv-02377-KJD-GWF
ORDER
Plaintiff’s Motion to Compel
Address of Defendant Shaw (#46)

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This matter comes before the Court on Plaintiff’s Motion to Compel the Address of

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Defendant William Shaw (#46), filed on August 30, 2011, and Defendant’s Opposition to

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Plaintiff’s Motion to Compel the Address of Defendant William Shaw (#48), filed on September 9,

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2011.

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The Complaint in this case was filed on June 28, 2010. On July 19, 2010, the Attorney

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General accepted service on behalf of several Defendants, but specifically noted that it did not

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accept service on behalf of Defendant Shaw because of their inability to accurately identify

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Defendant Shaw. (See #10.) Pursuant to the Court’s Order (#8), Plaintiff was instructed that “if

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service cannot be accepted for any of the named defendants, then plaintiff will need to file a motion

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identifying the unserved defendant(s), requesting the issuance of a summons, and specifying a full

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name and address for said defendant(s).” On July 26, 2010, Plaintiff claims he filed a motion with

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the Court; however, the document filed was captioned, “Notice of Specific Details Identifying

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Defendant William Shaw for the Purposes of Acceptance of Service.” (See # 46.) In this document,

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Plaintiff failed to identify Defendant Shaw’s address, but provided additional information in an

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attempt to accurately identify Defendant Shaw for the purposes of service. No action was ever

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taken in response to Plaintiff’s Notice (#11), and the issue of service on Defendant Shaw appears to

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have gotten lost among the numerous filings in this case. On November 22, 2010, Defendants filed

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a Motion to Dismiss (#24), and on August 11, 2011, the Court entered an Order (#43), granting in

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part and denying in part, Defendant’s Motion to Dismiss (#24). At least one claim against

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Defendant Shaw survived the Motion to Dismiss. (See #43, pg 6.) On August 24, 2011,

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Defendants filed their Answer (#44) to Plaintiff’s Complaint.

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Plaintiff now brings this motion requesting the Court to compel the address of Defendant

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William Shaw, compel Defendants to accept service for Defendants Shaw, or alternatively order

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Defendants to submit Defendant Shaw’s address to the Court for the purposes of service.

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Defendants object to this request, arguing that it is untimely because the 120 days allowed for

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service has expired.
Considering the totality of the circumstances, and affording the Plaintiff the benefit of the

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doubt, the Court will grant Plaintiff’s motion. See United States v. Eatinger, 902 F.2d 1383, 1385

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(9th Cir. 1990) (instructing the Court to construe pro se pleadings more liberally). Pursuant to Rule

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4(m), service must be accomplished within 120 days after the complaint is filed. The Court

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however may extend time for service if good cause exists for the failure to effect service within the

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prescribed time. Fed. R. Civ. P. 4(m). Shortly after the Attorney General notified the Court that it

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could not accept service on Defendant Shaw, Plaintiff filed a document providing additional

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information to identify Defendant Shaw in compliance with the Court’s Order (#8). Because the

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document was captioned as a notice and not as a motion, neither the Court nor Defendants took

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action on this document. In light of this inadvertence, the Court finds good cause to extend the

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time for service of Defendant Shaw.

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In the present motion, Plaintiff failed to identify Defendant William Shaw’s address for the

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purposes of service; however, Plaintiff’s prior Notice (#11), identified Defendant Shaw’s place of

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employment and periods of employment. Based on this information, the Court instructs

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Defendants to attempt to identify Defendant William Shaw and provide his last known address to

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the Court for the purposes of perfecting service upon him. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel the Address of Defendant
William Shaw (#46) is granted.
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IT IS FURTHER ORDERED that Defendants shall attempt to identify Defendant William

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Shaw based on the information provided. If Defendants identify William Shaw, Defendants must

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provide his last known address to the Court for the purposes of service. Upon the Court receiving

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the address of Defendant Shaw, the U.S. Marshals shall attempt service on him. If the Defendants

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are unable to accurately identify Defendant Shaw, Defendants shall to provide a status report to the

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Court no later than October 14, 2011, indicating such.

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DATED this 27th day of September, 2011.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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