Hutchens et al v. Northern Van Lines, Inc. et al

Filing 11

ORDER Granting 10 Plaintiffs' Motion for District Judge to Reconsider 9 Order of Dismissal - Rule 4m. The Court's 9 Order of Dismissal is Stricken. The action is Dismissed without prejudice as to Defendant Northern Van Lines, Inc. Signed by Judge Gloria M. Navarro on 10/8/2013. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STEFANIE HUTCHENS and MATTHEW
RAGSDELL,

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Plaintiffs,
vs.

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NORTHERN VAN LINES, INC., an Oregon
corporation; BLEUS PARADISE, LLC doing
business as EXPRESS VAN LINE, a Nevada
limited liability company; DOES I through X and
ROE CORPORATIONS I through X, inclusive,

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Defendants.

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Case No.: 2:13-cv-00700-GMN-CWH
ORDER

Pending before the Court is the Motion for Reconsideration (ECF No. 10) filed by

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Plaintiffs Stefanie Hutchens and Matthew Ragsdell (collectively, “Plaintiffs).

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I.

BACKGROUND

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Plaintiffs initiated this action on April 24, 2013 alleging one cause of action for

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violations of 49 U.S.C. § 14706. Subsequently, on August 20, 2013, Plaintiffs filed an

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Affidavit of Service indicating that Defendant Bleus Paradise, LLC was served with the

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Summons and Complaint. (ECF No. 6.) Thereafter, on August 30, 2013, Plaintiffs filed an

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Affidavit of Non-Service as to Defendant Northern Van Lines, Inc. (ECF No. 8.) In the

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Affidavit, it states that the process server was unable to serve Defendant Northern Van Lines

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because the “[a]ddress provided . . . is no[w] Crossfit workout center. No listing for Registered

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agent Lynn Theisman. Per Oregon Secretary of State Northern Van Lines Administrative

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Disolution [sic] on 11/16/12.” (Id.)

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On October 1, 2013, the Court entered an Order dismissing this action without prejudice
as to all Defendants and closing the case. (ECF No. 9.) In response, Plaintiffs filed the instant

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Motion for Reconsideration asserting that neither Defendant should be dismissed for failure to

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serve.

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II.

DISCUSSION

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“[A] motion for reconsideration should not be granted, absent highly unusual

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circumstances.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citation omitted).

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Reconsideration is appropriate where: (1) the court is presented with newly discovered

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evidence, (2) the court committed clear error or the initial decision was manifestly unjust, or

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(3) if there is an intervening change in controlling law. School Dist. No. 1J, Multnomah Cnty v.

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ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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As to Defendant Bleus Paradise, LLC, the Court agrees with Plaintiffs that clear error

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was committed. Specifically, it appears that Defendant Bleus Paradise, LLC was served with

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the Summons and Complaint on May 24, 2013. (See ECF No. 6.) Accordingly, the Court’s

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Order dismissing Defendant Bleus Paradise, LLC was in error and should be stricken.

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In their Motion for Reconsideration, Plaintiffs also assert that the Court also erred in

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dismissing Defendant Northern Van Lines, Inc. (Mot. to Reconsider 4:13-17, ECF No. 10.)

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Specifically, Plaintiffs assert that “Plaintiff attempted to serve Defendant Northern Van Lines,

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LLC on August 21, 2013, learning that the business has since dissolved however [this date is]

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within the 120 days allotted to serve pursuant to FRCP 4(m).” (Id. at 4:10-12.) However, Rule

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4(m) requires that Plaintiffs serve each Defendant within 120 days after the filing of the

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complaint or face dismissal of the action. Fed. R. Civ. P. 4(m). In addition, Rule 4(m) permits

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the Court to extend time for service, but only after Plaintiffs show good cause for the failure to

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serve. Fed. R. Civ. P. 4(m). Here, Plaintiffs have neither requested an extension nor shown

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good cause. Furthermore, Plaintiffs have failed to provide any legal authority to support the

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proposition that their failed attempt to serve the dissolved Defendant Northern Van Lines, Inc.

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is sufficient to avoid a 4(m) dismissal of this action against Defendant Northern Van Lines, Inc.

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Therefore, the Court’s Order dismissing this action as to Defendant Northern Van Lines, Inc.

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was not in error.

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III.

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CONCLUSION
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Reconsideration (ECF No. 10)

is GRANTED.
IT IS FURTHER ORDERED that the Court’s Order of Dismissal (ECF No. 9) is
STRICKEN.

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IT IS FURTHER ORDERED that, having failed to show good cause why this action

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should not be dismissed without prejudice for failure to effect timely service pursuant to Fed.

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R. Civ. P. 4(m), the action is hereby DISMISSED without prejudice as to Defendant

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Northern Van Lines, Inc.

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DATED this 8th day of October, 2013.

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___________________________________
Gloria M. Navarro
United States District Judge

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