Bellagio, LLC et al v. A N Bellagio Salon & Studio, Inc.

Filing 14

ORDER Granting Plaintiffs' 12 Motion to Extend Time to Serve Summons and 1 Complaint. Deadline: 9/10/2015. Signed by Magistrate Judge Nancy J. Koppe on 8/31/2015. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:15-cv-00669-JCM-NJK Document 12 Filed 08/28/15 Page 1 of 5

1
2
3
4
5
6
7

Michael J. McCue
State Bar No. 6055
Jonathan W. Fountain
State Bar No. 10351
Zachary T. Gordon
State Bar No. 13133
LEWIS ROCA ROTHGERBER LLP
3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]
[e-mail]

8
Attorneys for Plaintiffs
9
UNITED STATES DISTRICT COURT

11
3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996

10

DISTRICT OF NEVADA

13

BELLAGIO, LLC, a Nevada limited liability
company, and MIRAGE RESORTS, INC., a
Nevada corporation,

14

Plaintiffs,

12

15
16

CASE NO. 2:15-CV-00669-JCM-NJK
ORDER GRANTING
PLAINTIFFS' MOTION FOR
EXTENSION OF TIME TO SERVE
THE SUMMONS AND COMPLAINT

vs.
(Second Request)
A N BELLAGIO SALON & STUDIO, INC., a
New York corporation,

17

Defendant.

18
19
20

Plaintiffs Bellagio, LLC and Mirage Resorts Incorporated (“Plaintiffs”) hereby moves the
Court for a 30-day extension of time to serve the Summons and Complaint.
STATEMENT OF FACTS

21
22

Plaintiffs filed the Complaint on April 13, 2015. (Doc. 1.) Plaintiffs had 120 days to serve

23

the Summons and Complaint (i.e., until August 11, 2015). Fed. R. Civ. P. 4(m). On August 11,

24

2015, Plaintiffs filed an ex parte motion seeking a 30-day extension of time to serve the Summons

25

and Complaint. (Doc. 7.) Plaintiffs’ motion set forth five reasons why good cause existed for the

26

requested extension:
•

27
28

6507784_1

Plaintiffs’ counsel sent a courtesy copy of the Complaint to Defendant
along with a letter, giving Defendant actual notice of the pendency of this
action . . .

Case 2:15-cv-00669-JCM-NJK Document 12 Filed 08/28/15 Page 2 of 5

1
•

[T]here is no indication that Defendant would suffer any prejudice . . .

3

•

[A]n extension of time may allow the parties to settle the case . . .

4

•

Defendant has not been formally served to facilitate settlement and
conserve costs . . . [and]

•

[I]f the Complaint were dismissed, Plaintiffs would be prejudiced to the
extent [they] would have to incur the additional time, expense, and burden
of re-filing this action.

2

5
6
7
8

(Doc. 7, Plaintiffs’ Ex Parte Motion for Extension of Time to Serve the Summons and

9

Complaint.)
The Court denied the motion, finding that “Plaintiffs failed to establish compelling reasons

11
3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996

10

for filing their motion on an ex parte basis . . . .” (Doc. 8, Order Denying Ex Parte Motion at 1, l.

12

19.) The Court did not reach the issue of whether good cause exists for the requested extension.

13

(Id.)

14
15

On August 25, 2015, the Court served Plaintiffs with its Notice of Intention to Dismiss
Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (Doc. 9.)

16

Plaintiffs filed their response to the notice on August 28, 2015. (Doc. 10.) In their

17

response, Plaintiffs sought a 30-day extension of time to serve the Summons and Complaint. (Id.)

18

Later that same day, the Clerk of the Court served Plaintiffs with a notice directing Plaintiffs’

19

counsel to file a separate motion seeking an extension of time. (Doc. 11.)
LEGAL STANDARD

20
21

Rule 4 of the Federal Rules of Civil Procedure governs service of process in a civil action.

22

See generally, Fed. R. Civ. P. 4. Subpart (m) of the rule sets forth the time period during which

23

service must occur. Id. It states, in relevant part, the following:

24
25
26
27
28

Time Limit for Service. If a defendant is not served within 120 days after the
complaint is filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that defendant or
order that service be made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time for service for an
appropriate period.
Fed. R. Civ. P. 4(m). (Emphasis added.)

6507784_1

2

Case 2:15-cv-00669-JCM-NJK Document 12 Filed 08/28/15 Page 3 of 5

Rule 4(m) requires a two-step analysis in deciding whether to extend the time for service

2

of the summons and complaint. In re Sheehan, 235 F.3d 507, 512 (9th Cir. 2001). First, upon a

3

showing of good cause, the court must extend the time period. Id. Second, if there is no good

4

cause, the court has the discretion to dismiss without prejudice or to extend the time period. Id.

5

“[A]t a minimum, ‘good cause’ means excusable neglect.” Boudette v. Barnette, 923 F.2d 754,

6

756 (9th Cir. 1991). In Boudette, the Ninth Circuit stated that a plaintiff may be required to show

7

the following factors in order to bring the excuse to the level of good cause: “(a) the party to be

8

served received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c)

9

plaintiff would be severely prejudiced if his complaint were dismissed.” Id. (citing Hart v. United

10

States, 817 F.2d 78, 80–81 (9th Cir. 1987)). The Ninth Circuit has not articulated specific factors

11
3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996

1

for a district court to apply when exercising its discretion in the absence of a showing of good

12

cause. In re Sheehan, 253 F. 3d at 512. However, the court’s discretion is broad. Id.

13

ARGUMENT

14

Good cause exists for Plaintiffs’ failure to serve the Summons and Complaint within the

15

time provided by Rule 4(m), and the Court should grant Plaintiffs a modest 30-day extension of

16

time (i.e., until September 10, 2015) to serve the Summons and Complaint, for the following

17

reasons.

18

On July 14, 2014, Plaintiffs’ counsel sent a courtesy copy of the Complaint to Defendant

19

along with a letter, giving Defendant actual notice of the pendency of this action. The parties

20

attempted to contact Defendant after filing suit to try to settle the case. The Defendant did not

21

respond to multiple inquiries. Plaintiffs’ counsel sought in good faith to extend the time for

22

service of process prior to the expiration of the 120 day period for service. Plaintiffs did so on an

23

ex parte basis, because the Defendant had not entered an appearance. However, the Court denied

24

the motion.

25

Defendant.

Accordingly, Plaintiffs are now seeking a 30-day extension with notice to the

26

Upon receiving the Court’s notice of intent to dismiss, Plaintiffs promptly served the

27

Summons and Complaint upon Defendant. The Summons and Complaint were served upon

28

Defendant’s Chief Executive Officer, Mr. Aharon Nathnov, on August 27, 2015, just 16 days after

6507784_1

3

Case 2:15-cv-00669-JCM-NJK Document 12 Filed 08/28/15 Page 4 of 5

1

the original August 11, 2015 deadline for serving the Summons and Complaint. Defendant

2

unquestionably has actual notice of this action and the additional 16 days would not cause any

3

prejudice to the Defendant.

4

In contrast, if the Complaint is dismissed at this time, Plaintiffs will be prejudiced to the

5

extent they will have to expend additional time on this matter and incur additional costs in the

6

form of filing fees and attorneys’ fees necessary to re-file this action and re-serve the Summons

7

and Complaint.

8

CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court grant Plaintiffs a

10

30-day extension of time to serve the Summons and Complaint up to and including September 10,

11
3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996

9

2015.

12

DATED: this 28th day of August, 2015.

13

LEWIS ROCA ROTHGERBER LLP

14

By: s/ Jonathan W. Fountain
Michael J. McCue
State Bar No. 6055
E-mail: [e-mail]
Jonathan W. Fountain
State Bar No. 10351
E-mail: [e-mail]
Zachary T. Gordon
State Bar No. 13133
E-mail: [e-mail]
3993 Howard Hughes Pkwy, Suite 600
Las Vegas, NV 89169-5996
Tel: [phone]
Fax: [phone]

15
16
17
18
19
20
21

Attorneys for Plaintiffs

22
23

IT IS SO ORDERED.
Dated: August 31, 2015

24

______________________________
United States Magistrate Judge

25
26
27
28

6507784_1

4