Davitt v. Doe

Filing 15

ORDER Granting Plaintiff's 14 Motion for Extension of Time. Plaintiff has 30 days to furnish to the U.S. Marshal the required USM-285 form with relevant information as to each Defendant on each form. Within 20 days after receiving from t he U.S. Marshal a copy of the USM-285 form showing whether service has been accomplished, Plaintiff must file a notice with the Court identifying which Defendants were served and were not served. Signed by Magistrate Judge Carl W. Hoffman on 6/11/2015. (Copies have been distributed pursuant to the NEF - 2 USM 285 forms mailed to Plaintiff - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MICHAEL THOMAS DAVITT,

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Plaintiff,
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vs.
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DR. MITZER,
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Defendant.
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____________________________________)

Case No. 2:14-cv-01504-GMN-CWH
ORDER

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This matter is before the court on Plaintiff Michael Thomas Davitt’s Motion for Extension of

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Time (#14), filed June 8, 2015. Plaintiff is proceeding in forma pauperis. To date, the United States

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Marshal has been unable to effectuate service of process based on the information provided in

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Plaintiff’s USM-285 forms. The Court has previously denied Plaintiff’s request to have the U.S.

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Marshal make additional service attempts at an incorrect address. Instead, Plaintiff was ordered to

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provide new USM-285 forms to the U.S. Marshal with additional information so that the U.S. Marshal

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could serve the summons and complaint on Defendant Dr. Mitzer. (Dkt. #10). It does not appear that

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Plaintiff has provided new USM-285 forms to the U.S. Marshal. Plaintiff alleges the failure is due to

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the fact that he has not received blank USM-285 forms to submit to the U.S. Marshal, and because his

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incarcerating facility has actively sought to limit his ability to prosecute this case. Thus, he requests

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additional time to complete service.

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Federal Rule of Procedure 4(m) requires a defendant to be served within 120 days after the

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complaint is filed. Failure to do so may result in the action being dismissed without prejudice.

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However, courts routinely extend the time for service under Rule 4(m) upon a showing of good cause.

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See Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2003) (courts have broad discretion to extend time

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for service under Rule 4(m)); see also Henderson v. United States, 517 U.S. 654, 661 (1996) (the 120-

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

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but as an irreducible allowance.”). “On its face, Rule 4(m) does not tie the hands of the district court
after the 120-day period has expired. Rather, Rule 4(m) explicitly permits a district court to grant an

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extension of time to serve the complaint after that 120-day period.” Mann v. American Airlines, 324

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F.3d 1088, 1090 (9th Cir. 2003). Moreover, the Advisory Committee Notes to Rule 4(m) state that the

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rule “explicitly provides that the court shall allow additional time if there is good cause for the

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plaintiff’s failure to effect service in the prescribed 120 days, and authorizes the court to relieve a

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

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

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

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Based on the record, the undersigned finds good cause to extend the time to effectuate service.

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Plaintiff will be afforded an additional ninety (90) days to complete service. As before, the Plaintiff is

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instructed to submit new USM-285 forms to the U.S. Marshal so that service may be accomplished.

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Accordingly

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IT IS HEREBY ORDERED that Plaintiff’s Motion for Extension of Time (#14) is granted.
Plaintiff shall have until Thursday, August 13, 2015 to complete service.
IT IS FURTHER ORDERED that the Clerk of Court shall send Plaintiff two new, blank

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USM-285 forms. Plaintiff shall have thirty (30) days within which to furnish to the U.S. Marshal the

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required USM-285 form with relevant information as to each Defendant on each form. Within twenty

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(20) days after receiving from the U.S. Marshal a copy of the USM-285 form showing whether service

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has been accomplished, Plaintiff must file a notice with the Court identifying which Defendants were

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served and were not served, if any. If Plaintiff wishes to have service again attempted on any unserved

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Defendants, then a motion must be filed with the Court specifying a more detailed name and/or address

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for said Defendants, or whether some other manner of service should be attempted.

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IT IS FURTHER ORDERED that the Court, in its discretion, may order a subpoena duces
tecum to an appropriate entity in order to facilitate service if necessary.
Dated: June 11, 2015.

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