Sandy v. Bank of America Corp. et al

Filing 11

ORDER Denying without prejudice 6 Plaintiff's Motion to Amend 1 Complaint. IT IS FURTHER ORDERED that 8 Plaintiff's Motion to Extend Time is GRANTED. Time limit for completion of service is 1/5/2015. IT IS FURTHER ORDERED that [ 10] Defendant's Motion to Extend Time to File Responsive Pleading is GRANTED.. Bank of New York Mellon, N.A., Mortgage Electronic Registration System, Inc., and Select Portfolio Services, Inc. answers due 10/17/2014. Signed by Magistrate Judge Carl W. Hoffman on 10/3/2014. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BAYARDO RENO SANDY,

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Plaintiff,
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vs.
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BANK OF NEW YORK MELLON, N.A., et al.,
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Defendants.
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__________________________________________)

Case No. 2:14-cv-01100-JCM-CWH
ORDER

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This matter is before the Court on Plaintiff’s Motion to Amend Complaint (#6), filed
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September 8, 2014; Plaintiff’s Motion to Extend Time (#8), filed September 19, 2014; and
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Defendants’ Motion to Extend Time (#10), filed October 1, 2014.
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1. Plaintiff’s Motion to Amend (#6)
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Plaintiff seeks leave to file an amended complaint. The motion was filed prior to service of
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the original complaint. Motions to amend are generally governed by Federal Rule of Civil
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Procedure 15, which, in pertinent part, provides: “A party may amend its pleading once as a matter
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of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive
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pleading is required, 21 days after service of a responsive pleading or 21 days after service of a
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motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a). Additionally, this
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Court’s Local Rules require that “[u]nless otherwise permitted by the Court, the moving party shall
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attach the proposed amended pleading to any motion to amend, so that it will be complete in itself
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without reference to the superseding pleading.” Local Rule 15-1(a). Here, Plaintiff has not
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attached a copy of his proposed amended complaint. Therefore, the request to amend will be
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denied without prejudice.
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2. Plaintiff’s Motion to Extend Time (#8)
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Plaintiff also requests a 120-day extension of time for completion of service on several

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defendants. The timing for completion of service in this case is governed by Federal Rule of Civil

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Procedure 4(m), which provides: “If a defendant is not served within 120 days after the complaint

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is filed, the court–on motion or on its own after notice to the plaintiff–must dismiss the action

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without prejudice against that defendant or order that service be made within a specified time. But

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

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appropriate period.” Courts have broad discretion to extend time for service under Rule 4(m).

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Efaw v. Williams, 473 F.3d 1038, 1041(9th Cir. 2003). The Supreme Court has stated that the 120-

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day time period for service contained in Rule 4(m) “operates not as an outer limit subject to

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reduction, but as an irreducible allowance.” Henderson v. United States, 517 U.S. 654, 661 (1996).

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“On its face, Rule 4(m) does not tie the hands of the district court after the 120-day period has

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expired. Rather, Rule 4(m) explicitly permits a district court to grant an extension of time to serve

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the complaint after that 120-day period.” Mann v. American Airlines, 324 F.3d 1088, 1090 (9th

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Cir. 2003). Moreover, the Advisory Committee Notes to Rule 4(m) state that the rule “explicitly

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provides that the court shall allow additional time if there is good cause for the plaintiff’s failure to

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effect service in the prescribed 120 days, and authorizes the court to relieve a plaintiff of the

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consequences of an application of [Rule 4(m)] even if there is no good cause shown.” See Fed. R.

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Civ. P. 4(m), Advisory Committee Notes, 1993 Amendments. Generally, “good cause” is equated

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with diligence. See Wright & Miller, Federal Practice and Procedure: Civil 3d § 1337.

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The complaint in this matter was filed on July 7, 2014, making the deadline to accomplish

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service under Rule 4(m) November 4, 2014. Given the time remaining to effectuate service, the

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Court finds that an extension of 120-days is not necessary. Nevertheless, Plaintiff is proceeding

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pro se and has shown diligence in his attempts to effectuate service and advance the litigation.

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Thus, the Court finds there is good cause for a more limited extension of 60-days to complete

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service. Service should be completed on or before January 5, 2015.

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3. Defendants’ Motion to Extend Time (#10)

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The Court has reviewed the motion to extend time and finds there is good cause for the

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limited extension requested. Defendants’ response to the complaint shall be due on or before

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October 17, 2014.
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Based on the foregoing and good cause appearing,

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IT IS HEREBY ORDERED that Plaintiff’s Motion to Amend Complaint (#6) is denied

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without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Extend Time (#8) is granted.
The time limit for completion of service is January 5, 2015.
IT IS FURTHER ORDERED that Defendants’ Motion to Extend Time (#10) is granted.
Defendants shall have until October 17, 2014 to file their responsive pleading.
DATED: October 3, 2014.

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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