King v. Calderwood et al

Filing 41

ORDER that 20 Motion to Serve is DENIED AS MOOT. Duane Graham answer due 2/19/2015. Signed by Magistrate Judge Peggy A. Leen on 2/5/15. (Copies have been distributed pursuant to the NEF - TR)

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    1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 MATTHEW J. KING, 8 Plaintiff, ORDER v. 9 10 Case No. 2:13-cv-02080-GMN-PAL (Mtn for Svs – Dkt. #20) AMY CALDERWOOD, et al., Defendants. 11 12 This matter is before the court on Plaintiff Matthew J. King’s Motion for Service (Dkt. 13 #20). 14 considered the Motion. Plaintiff is a prisoner proceeding in this civil rights action pro se. The court has 15 Plaintiff filed the complaint in state court, and on November 12, 2013, Defendants Amy 16 Calderwood, James G. Cox, Roland Daniels, Duane Graham, Cary Leavitt, Jennifer Nash, Chad 17 Smith, and James Larry Wuest (“Defendants”), through counsel, filed a Petition for Removal 18 (Dkt. #1). The court screened the complaint pursuant to 28 U.S.C. § 1915A, and ordered that the 19 complaint would proceed, as pled, against the Defendants. See Screening Order (Dkt. #6). The 20 court stayed this case to allow the parties to conduct a mediation. Id. After an unsuccessful 21 mediation, defense counsel filed an Acceptance of Service (Dkt. #15) for all of the Defendants 22 except Duane Graham, who is no longer employed by the Nevada Department of Corrections 23 (“NDOC”). Defense counsel, Ms. Mercedes Menendez, filed Graham’s last known address 24 under seal. See Notice of Under Seal Submission (Dkt. #17). 25 The court directed the Clerk of Court to issue summons to Graham and directed the U.S. 26 Marshal’s Service (“USMS”) to serve the complaint on the address listed in the Notice 27 Order (Dkt. #18). The Clerk of Court issued Summons (Dkt. #19). The USMS attempted to 28 serve the complaint and Summons but was unsuccessful. See Summons Returned Unexecuted 1 See     1 (Dkt. #21) (indicating service attempted on three occasions, but that Graham no longer resided at 2 the address provided by the Attorney General). However, Plaintiff’s Motion indicates that 3 previously, Graham was personally served through the Clark County Sheriff’s Civil Process 4 Division with the complaint and summons in this case. Plaintiff has attached an affidavit of 5 service filed in the state court prior to removal indicating Graham was personally served. See 6 Affidavit of Service (Dkt. #20) at 3. Plaintiff also indicates Graham is no longer employed by 7 NDOC. 8 It appears that Plaintiff’s Motion for Service and the court’s Order (Dkt. #18) crossed in 9 the mail, because the motion requests the court order the USMS to serve Graham at the address 10 listed in the AG’s under seal submission. However, Graham was already served with the 11 complaint and summons prior to removal. Neither side disputes that Graham was personally 12 served at his place of employment, through a person designated to receive service, by a Deputy 13 Clark County Sheriff according to Rule 4(c) and (d) of the Nevada Rules of Civil Procedure. In 14 fact, defense counsel acknowledged in the Petition for Removal that all of the other Defendants, 15 including Graham, were served with process on October 11, 2013. Id. at 2: 6-10 and at Exh. B. 16 Therefore, Graham need not be served again, as he was already served prior to removal. See, 17 e.g., 28 U.S.C. § 1448. 18 Furthermore, although defense counsel attempted to limit her appearance solely to 19 settlement discussions by filing a limited Notice of Appearance (Dkt. #8), she had already made 20 a general appearance as counsel for all of the Defendants except Quentin Byrne, who had not yet 21 been served at the time the case was removed, when she filed the Petition for Removal on 22 November 12, 2013, on behalf of the Defendants. See Petition for Removal (Dkt. #1) at 2:14-18. 23 Ms. Menendez is counsel of record for all Defendants except Byrne unless and until she is 24 granted permission to withdraw. 25 Accordingly, 26 IT IS ORDERED: 27 1. Plaintiff’s Motion to Serve (Dkt. #20) is DENIED AS MOOT, as Defendant Graham 28 was properly served prior to removal. 2     1 2. Defense counsel shall file a responsive pleading on behalf of Defendant Graham no 2 later than February 19, 2015. 3 Dated this 5th day of February, 2015. 4 5 PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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