Santos v. Allen et al

Filing 245

ORDER that 240 Motion to Compel Acceptance of Service is DENIED. Signed by Magistrate Judge Nancy J. Koppe on 4/25/16. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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RONALD SANTOS,

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Plaintiff(s),
vs.

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ISIDRO BACA, et al.,
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Defendant(s).
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Case No. 2:11-cv-01251-KJD-NJK
ORDER
(Docket No. 240)

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Pending before the Court is Plaintiff’s motion to compel acceptance of service. Docket No. 240.

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Defendants failed to respond. See Docket. The Court finds the motion properly resolved without oral

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argument. See Local Rule 78-2. For the reasons discussed below, the Court DENIES Plaintiff’s

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motion.

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This is a prisoner’s civil rights case. Plaintiff argues that the Court should compel the Nevada

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Department of Corrections (“NDOC”) to accept service for Defendants Burson, Camacho, and

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Carabajal. Docket No. 240 at 1. Additionally, Plaintiff contends that the Court should sanction NDOC

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because it did not accept service on their behalf. Id. at 4.

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Defendant Burson was served, and the Attorney General’s Office for the State of Nevada filed

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an answer on his behalf, but it later withdrew as his attorney after he moved to Belize. Docket No. 174

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at 2; see also Docket No. 180 (granting motion to withdraw as attorney). Because Defendant Burson

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has been served, Plaintiff’s motion to compel acceptance of service and related request for sanctions are

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DENIED as moot.

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Defendants Camacho and Carabajal are former NDOC employees. Docket No. 145 at 2. The

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Court has previously explained that the State of Nevada is not necessarily obligated to accept service

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for former state employees. See Docket No. 158. The Court therefore construes Plaintiff’s request as

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a motion for reconsideration.

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Reconsideration is appropriate if the Court: (1) is presented with newly discovered evidence; (2)

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committed clear error, or the initial decision was manifestly unjust; or (3) if there is an intervening

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change in controlling law.

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Reconsideration is “an extraordinary remedy, to be used sparingly and in the interests of finality and

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conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.

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Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003).

2000) (internal quotation marks omitted).

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Plaintiff has provided no legal analysis to warrant reconsideration of the Court’s prior order.

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Instead, Plaintiff attached a form in which Defendant Carabajal authorized NDOC to act as his agent

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for the purpose of accepting service of process. Docket No. 240 at 7. That form makes clear that this

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agency relationship persisted for the two-year period following the employee’s termination unless it was

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revoked or NDOC was unable to locate the former employee. Id. Plaintiff concludes that, because

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Defendants’ counsel provided the last known address of Defendant Camacho and Carabajal, NDOC was

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obligated to accept service on their behalf. Id.

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Plaintiff equivocates the provision of these defendants’ last known addresses with ability to

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locate them. By Plaintiff’s own admission, the United States Marshal Service has been unable to locate

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the unserved defendants at these addresses. Id. at 2. It is unclear whether a contractual obligation

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existed. Further, Plaintiff does not provide a legal theory that would give him a remedy for a breach of

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this obligation, if it existed. Accordingly, Plaintiff’s request to compel acceptance of service and

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accompanying request for sanctions is DENIED.

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Additionally, Plaintiff requests sanctions relating to the costs of attempting to serve Defendants

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Mohlenkamp, Ferguson, Schaff, and Scilia. Id. at 4-5. For the reasons discussed above, this request is

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DENIED.

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Finally, Plaintiff seeks “a scheduling order be granted permitting [him] to conduct discovery[.]”

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Id. at 4. The Court entered a scheduling order in this case on October 3, 2014. Docket No. 64. On
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December 5, 2014, Plaintiff moved to extend the discovery period. Docket No. 87. On December 8,

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2014, the Court granted Plaintiff’s motion in part. Docket No. 88. On March 2, 2015, Plaintiff again

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moved to extend discovery. Docket No. 105. On March 5, 2015, the Court granted Plaintiff’s motion.

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Docket No. 108. Extensive discovery litigation has occurred in this case. See Docket. Therefore, as

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a scheduling order has already been entered and Plaintiff has already been permitted to conduct

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discovery, his request for a scheduling order permitting him to conduct discovery is DENIED as moot.

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III.

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CONCLUSION
For the reasons more fully explained above, Plaintiff’s motion to compel acceptance of service,

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Docket No. 240, is DENIED.

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IT IS SO ORDERED.

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DATED: April 25, 2016

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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