Lindsey v. Sunrise Hospital and Medical Center, LLC

Filing 7

ORDER GRANTING in part and DENYING in part 6 Ex Parte Motion to Enlarge Time : Service deadline 11/16/2015. The motion is denied as to service by publication. Signed by Magistrate Judge Carl W. Hoffman on 10/14/2015. (Copies have been distributed pursuant to the NEF - DRM) Modified to remove restricted access on per Order 8 on 10/16/2015 (RFJ).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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VIRGINIA LINDSEY,

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Plaintiff,
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vs.
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SUNRISE HOSPITAL AND MEDICAL CENTER, )
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Defendant.
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__________________________________________)

Case No. 2:15-cv-01161-APG-CWH
ORDER

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Presently before the Court is Plaintiff Virginia Lindsey’s Ex Parte Motion to Enlarge Time

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for Service of the Summons and Complaint by Publication (ECF No. 6), filed on October 7, 2015.

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Although Plaintiff’s motion is somewhat confusing, the Court understands Plaintiff to be

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requesting additional time to serve Defendant due to issues Plaintiff encountered in communicating

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with her process server. Plaintiff’s current deadline for serving Defendant is October 17, 2015.

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I.

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BACKGROUND
Plaintiff states that she filed this case on October 1, 2015, however, the Court’s docket

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indicates that this case was filed on June 19, 2015. (Compl. (ECF No. 1).) According to Plaintiff,

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on July 2, 2015, she emailed a process server to request that Defendant be served with process. (Ex

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Parte Mot. to Extend Time for Service (ECF No. 6) at 4.) Plaintiff states that on July 27, 2015, she

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followed up with the process server by email regarding the status of service, but did not receive a

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response. (Id.) Plaintiff further states that on September 28, 2015, she left a voice mail for the

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process server, but did not receive a return telephone call. (Id.) Plaintiff states that on October 2,

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2015, she sent another email to the process server, but did not receive a response. (Id.) Finally,

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Plaintiff states that on October 7, 2015, she contacted a new process server to request service on

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Defendant. (Id.) Plaintiff does not explain why the new process server will be unable to

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accomplish service on Defendant, which presumably has a registered agent, by the current deadline

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of October 17, 2015.

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Plaintiff now moves to extend time to serve the Plaintiff by publication, arguing good cause

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exists to extend time because she made multiple attempts to contact the process server but did not

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receive a response. Additionally, Plaintiff argues she has demonstrated excusable neglect because

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she diligently followed up with the process server and is now using a different process server.

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Plaintiff’s motion does not explain why she is requesting service by publication.

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II.

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ANALYSIS
Federal Rule of Civil Procedure 4(m) establishes the time for service on domestic

defendants:

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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.

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The Court must extend the 120-day time limit of Rule 4(m) if the serving party shows good cause

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for failure to serve within 120 days. Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009).

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If the serving party does not show good cause, the Court has discretion to extend time for service,

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or to dismiss the complaint without prejudice. In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001).

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The Court’s discretion to extend time for service, or to dismiss without prejudice for failure to

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timely serve, is broad. Id.

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Courts must determine on a case-by-case basis whether the serving party has shown good

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cause. In re Sheehan, 253 F.3d at 512. Generally, good cause is equated with diligence. Townsel

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v. Contra Costa Cnty., Cal., 820 F.2d 319, 320 (9th Cir. 1987). A showing of good cause requires

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more than inadvertence or mistake of counsel. Id. “[A]t a minimum, good cause means excusable

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neglect.” In re Sheehan, 253 F.3d at 512 (quotation omitted).

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Plaintiff has not demonstrated good cause to extend time to serve Defendant. Although

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Plaintiff argues she was diligent because she followed up with the process server three times over a

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period of three months, Plaintiff does not explain why she waited two months to follow up with the

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process server after the process server did not respond to Plaintiff’s initial status inquiry email
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dated July 27, 2015. Further, Plaintiff does not explain why she did not engage a different process

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server in late July or early August, as soon as she began having communication problems with the

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process server, rather than waiting until the service deadline nearly had run to hire a different

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process server. Regardless, under Rule 4, the Court has discretion, even without good cause, to

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extend the time for service. Given that this is Plaintiff’s first request to extend time for service and

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that the service deadline has not yet expired, the Court will grant Plaintiff an additional 30 days

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from the current service deadline to serve Defendant.

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To the extent Plaintiff requests the Court’s permission to serve by publication, however,
Plaintiff’s motion is denied. Plaintiff does not present argument or authority explaining why

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service by publication is appropriate in this case, which constitutes consent to denial of the motion.

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See Local Rule 7-2(d) (stating that “[t]he failure of a moving party to file points and authorities in

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support of the motion shall constitute a consent to the denial of the motion.”)

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Finally, the Court notes that Plaintiff’s motion relies on Nevada Rule of Civil Procedure 4

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and the factors set forth in Scrimer v. Eighth Judicial District Court, 998 P.2d 1190 (Nev. 2000).

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Plaintiff is advised that future filings in this case must rely on the Federal Rules of Civil Procedure.

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The Nevada Rules of Civil Procedure do not govern proceedings in this Court.

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III.

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CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff Virginia Lindsey’s Ex Parte Motion to

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Enlarge Time for Service of the Summons and Complaint by Publication (ECF No. 6) is

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GRANTED in part and DENIED in part. The motion is granted to the extent that the Court will

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allow Plaintiff an additional 30 days to serve Defendant with process, making the service deadline

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November 16, 2015. The motion is denied to the extent that Plaintiff requests the Court’s

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permission to serve by publication.

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DATED: October 14, 2015

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

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