Bank of New York Mellon v. Traccia Community Association et al

Filing 27

ORDER Granting 22 Motion to Extend Time for Accomplished Service. Signed by Magistrate Judge Peggy A. Leen on 4/26/17. (Copies have been distributed pursuant to the NEF - MMM)

Case 2:16-cv-02568-RFB-PAL Document 22 Filed 03/29/17 Page 1 of 3

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MELANIE D. MORGAN, ESQ.
Nevada Bar No. 8215
REX D. GARNER, ESQ.
Nevada Bar No. 9401
AKERMAN LLP
1160 Town Center Drive, Suite 330
Las Vegas, NV 89144
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for Plaintiff The Bank of New
York Mellon f/k/a The Bank of New York, as
Trustee for the holders of the Certificates,
First Horizon Mortgage Pass-Through
Certificates Series FHASI 2005-AR5

AKERMAN LLP

1160 TOWN CENTER DRIVE, SUITE 330
LAS VEGAS, NEVADA 89144
TEL.: [phone] – FAX: [phone]

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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THE BANK OF NEW YORK MELLON F/K/A
THE BANK OF NEW YORK, AS TRUSTEE
FOR THE HOLDERS OF THE CERTIFICATES,
FIRST HORIZON MORTGAGE PASSTHROUGH CERTIFICATES SERIES FHASI
2005-AR5

Case No.: 2:16-cv-02568-RFB-VCF
RESPONSE TO COURT'S ORDER DATED
FEBRUARY 28, 2017 [ECF NO. 17] AND
REQUEST FOR EXTENSION OF TIME
FOR ACCOMPLISHED SERVICE

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Plaintiff,
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v.

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TRACCIA COMMUNITY ASSOCIATION;
PREMIER ONE HOLDINGS, INC.;
YUANYUAN ZHU; AND NEVADA
ASSOCIATION SERVICES, INC.,

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Defendants.
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The Court issued an order on February 28, 2017 regarding its intention to dismiss pursuant to

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Rule 4(m). As shown in ECF Nos. 18–20, Nationstar has accomplished service on defendants Premier

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One Holdings, Inc.; Yuanyuan Zhu; and Nevada Association Services, Inc., although not within the

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90-day limit of newly amended Rule 4. Therefore, although defendant has now been served, the Bank

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of New York Mellon requests a retroactive extension of 45 days to accomplish service.

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Courts have broad discretion to extend time for service under Rule 4(m). Efaw v. Williams,

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473 F.3d 1038, 1041(9th Cir. 2003). The U.S. Supreme Court has stated that the time period for
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Case 2:16-cv-02568-RFB-PAL Document 22 Filed 03/29/17 Page 2 of 3

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service contained in Rule 4(m) "operates not as an outer limit subject to reduction, but as an

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irreducible allowance." Henderson v. United States, 517 U.S. 654, 661 (1996). "On its face, Rule

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4(m) does not tie the hands of the district court after the 120-day period has expired. Rather, Rule 4(m)

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explicitly permits a district court to grant an extension of time to serve the complaint after that 120-day

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period." Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). Moreover, the Advisory

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Committee Notes to Rule 4(m) state that the rule "explicitly provides that the court shall allow

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additional time if there is good cause for the plaintiff's failure to effect service in the prescribed 120

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days, and authorizes the court to relieve a plaintiff of the consequences of an application of [Rule

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4(m)] even if there is no good cause shown." See Fed. R. Civ. P. 4(m), Advisory Committee Notes,

AKERMAN LLP

1160 TOWN CENTER DRIVE, SUITE 330
LAS VEGAS, NEVADA 89144
TEL.: [phone] – FAX: [phone]

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1993 Amendments.

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Rule 4 provides for court discretion in its enforcement, providing that a court may "order that

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service be made within a specified time," even if that time exceeds the recently amended 90-day time

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frame for service. All Defendants have now been served, and most were served within the 120-day

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time limit of former Rule 4. Plaintiff believes no prejudice has or will result from the delay in service.

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For these reasons, Plaintiff respectfully requests the Court exercise its discretion and permit the

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service now accomplished on defendants Premier One Holdings, Inc.; Yuanyuan Zhu; and Nevada

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Association Services, Inc.

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DATED March 29, 2017.

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AKERMAN LLP
IT IS ORDERED that, as no response
has been filed, and the time for filing a
response has expired, the motion is
GRANTED.

/s/ Rex D. Garner
MELANIE D.MORGAN, ESQ.
Nevada Bar No. 8215
REX D. GARNER, ESQ.
Nevada Bar No. 9401
1160 Town Center Drive, Suite 330
Las Vegas, Nevada 89144

Dated: April 26, 2017

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Attorneys for Plaintiff The Bank of New York
Mellon f/k/a The Bank of New York, as Trustee for
the holders of the Certificates, First Horizon
Mortgage Pass-Through Certificates Series
FHASI 2005-AR5

__________________________________
Peggy A. Leen
United States Magistrate Judge

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Case 2:16-cv-02568-RFB-PAL Document 22 Filed 03/29/17 Page 3 of 3

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CERTIFICATE OF SERVICE

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I HEREBY CERTIFY that on the 29th day of March, 2017, service of the foregoing

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RESPONSE TO COURT'S ORDER DATED FEBRUARY 28, 2017 [ECF NO. 17] AND

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REQUEST FOR EXTENSION OF TIME FOR ACCOMPLISHED SERVICE was made

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pursuant to FRCP 5(b) and electronically transmitted to the Clerk's Office using the CM/ECF system

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for filing and transmittal to all interested parties.

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/s/ Michael Hannon
An employee of AKERMAN LLP

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AKERMAN LLP

1160 TOWN CENTER DRIVE, SUITE 330
LAS VEGAS, NEVADA 89144
TEL.: [phone] – FAX: [phone]

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