Gorham et al v. American Family Mutual Insurance Company

Filing 15

ORDER Denying 5 Defendant's Motion to Dismiss and Denying as moot 2 Defendant's Motion to Quash. Signed by Judge James C. Mahan on 01/27/2014. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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2:13-CV-2274 JCM (GWF)

MICHAEL GORHAM, CAROL
PEREA,

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Plaintiff(s),

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v.

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AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,

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Defendant(s).

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ORDER
Presently before the court is the matter of Gorham, et al., v. American Family Mutual

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Insurance Co., case no. 2:13-cv-2274-JCM-GWF.

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The defendant has filed a motion to quash service and dismiss the case. (Doc. # 2). In

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accordance with Special Order 109, the clerks office split the motion and docketed a separate entry

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as a motion to dismiss. (Doc. ## 5, 6). The two motions are identical in substance. Accordingly,

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the court will address only the motion to dismiss (doc. # 5) and deny the motion to quash (doc. # 2)

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as moot.

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I.

Background

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This matter arises out of a motor vehicle collision in which plaintiffs Michael Gorham and

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Carol Perea were injured. At the time of the collision, Michael maintained an insurance policy with

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defendant American Family Mutual Insurance.

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James C. Mahan
U.S. District Judge

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On April 15, 2013, plaintiffs filed the instant complaint in Nevada state court. Plaintiffs’

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counsel at that time was Courtenay Lachenmaier. On May 21, 2013, Ms. Lachenmaier died. As of

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the time of her passing, plaintiffs’ complaint had not been served on the defendant.

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According to plaintiffs, Ms. Lachenmaier’s client files were thereafter transferred to a probate

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firm, where they sat for several weeks. Plaintiff were notified of Ms. Lachenmaier’s passing several

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weeks later, and the firm provided plaintiffs with their case files. According to plaintiffs, they were

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only provided with a small portion of their files along with the names of four attorneys.

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Thereafter, plaintiffs contacted current counsel, who filed a motion in state court to extend

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the time in which to serve defendants. That motion was granted. Counsel then effectuated service,

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and the case was removed to this court. Defendant now moves to quash service and dismiss the

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complaint.

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II.

Discussion

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The federal rules require a plaintiff to serve the defendant with a copy of the summons and

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complaint within 120 days from the filing of the complaint. Fed. R. Civ. P. 4(m). However, “if the

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plaintiff shows good cause for the failure, the court must extend the time for service for an

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appropriate period.” Id.

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Although plaintiffs admit they did not serve the defendant within the requisite time period,

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they argue good cause exists to excuse their failure. In particular, plaintiffs assert that Ms.

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Lachenmaier succumbed to cancer within one month of filing the complaint, the case file was

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transferred to a probate firm where it remained for several weeks, between one and two months

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passed before plaintiffs were aware that Ms. Lachenmaier had passed away (the exact duration is

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disputed), and current counsel filed a motion to extend time to serve in state court, which was

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granted, and served the defendant immediately thereafter.

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The determination of whether good cause exists is within the sound discretion of the trial

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court. See, e.g., Whale v. United States, 792 F.2d 951 (9th Cir. 1986). In the instant case, the court

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finds that the passing of plaintiffs’ original counsel and the subsequent events regarding the transfer

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of the case files constitute good cause in which to excuse plaintiffs’ failure to timely serve. Further,

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James C. Mahan
U.S. District Judge

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the defendant will not be prejudiced if the court excuses the failure.

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IV.

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Conclusion
The court finds good cause exists to excuse plaintiff’s failure to comply with Rule 4(m). The

motion to quash service and dismiss is denied.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant’s motion to

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dismiss (doc. # 5) be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that defendant’s motion to quash (doc. # 2) be, and the same
hereby is, DENIED as moot.
DATED January 27, 2014.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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