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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MATTHEW J. KING,

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Plaintiff,

ORDER

v.

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Case No. 2:13-cv-02080-GMN-PAL

(Mtn for Svs – Dkt. #20)
AMY CALDERWOOD, et al.,
Defendants.

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This matter is before the court on Plaintiff Matthew J. King’s Motion for Service (Dkt.

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#20).

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considered the Motion.

Plaintiff is a prisoner proceeding in this civil rights action pro se.

The court has

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Plaintiff filed the complaint in state court, and on November 12, 2013, Defendants Amy

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Calderwood, James G. Cox, Roland Daniels, Duane Graham, Cary Leavitt, Jennifer Nash, Chad

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Smith, and James Larry Wuest (“Defendants”), through counsel, filed a Petition for Removal

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(Dkt. #1). The court screened the complaint pursuant to 28 U.S.C. § 1915A, and ordered that the

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complaint would proceed, as pled, against the Defendants. See Screening Order (Dkt. #6). The

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court stayed this case to allow the parties to conduct a mediation. Id. After an unsuccessful

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mediation, defense counsel filed an Acceptance of Service (Dkt. #15) for all of the Defendants

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except Duane Graham, who is no longer employed by the Nevada Department of Corrections

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(“NDOC”). Defense counsel, Ms. Mercedes Menendez, filed Graham’s last known address

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under seal. See Notice of Under Seal Submission (Dkt. #17).

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The court directed the Clerk of Court to issue summons to Graham and directed the U.S.

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Marshal’s Service (“USMS”) to serve the complaint on the address listed in the Notice

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Order (Dkt. #18). The Clerk of Court issued Summons (Dkt. #19). The USMS attempted to

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serve the complaint and Summons but was unsuccessful. See Summons Returned Unexecuted
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See

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(Dkt. #21) (indicating service attempted on three occasions, but that Graham no longer resided at

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the address provided by the Attorney General). However, Plaintiff’s Motion indicates that

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previously, Graham was personally served through the Clark County Sheriff’s Civil Process

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Division with the complaint and summons in this case. Plaintiff has attached an affidavit of

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service filed in the state court prior to removal indicating Graham was personally served. See

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Affidavit of Service (Dkt. #20) at 3. Plaintiff also indicates Graham is no longer employed by

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NDOC.

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It appears that Plaintiff’s Motion for Service and the court’s Order (Dkt. #18) crossed in

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the mail, because the motion requests the court order the USMS to serve Graham at the address

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listed in the AG’s under seal submission. However, Graham was already served with the

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complaint and summons prior to removal. Neither side disputes that Graham was personally

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served at his place of employment, through a person designated to receive service, by a Deputy

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Clark County Sheriff according to Rule 4(c) and (d) of the Nevada Rules of Civil Procedure. In

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fact, defense counsel acknowledged in the Petition for Removal that all of the other Defendants,

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including Graham, were served with process on October 11, 2013. Id. at 2: 6-10 and at Exh. B.

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Therefore, Graham need not be served again, as he was already served prior to removal. See,

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e.g., 28 U.S.C. § 1448.

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Furthermore, although defense counsel attempted to limit her appearance solely to

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settlement discussions by filing a limited Notice of Appearance (Dkt. #8), she had already made

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a general appearance as counsel for all of the Defendants except Quentin Byrne, who had not yet

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been served at the time the case was removed, when she filed the Petition for Removal on

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November 12, 2013, on behalf of the Defendants. See Petition for Removal (Dkt. #1) at 2:14-18.

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Ms. Menendez is counsel of record for all Defendants except Byrne unless and until she is

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granted permission to withdraw.

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Accordingly,

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IT IS ORDERED:

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1. Plaintiff’s Motion to Serve (Dkt. #20) is DENIED AS MOOT, as Defendant Graham

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was properly served prior to removal.
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2. Defense counsel shall file a responsive pleading on behalf of Defendant Graham no

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later than February 19, 2015.

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Dated this 5th day of February, 2015.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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