Randolph v. The State of Nevada, Ex Rel, Nevada Department of Corrections et al

Filing 33

ORDER GRANTING 32 Motion to Substitute Party : Defendant Embarq Payphone Services, Inc., shall be substituted as a defendant herein in place of Defendants Century Link Sales Solutions, Inc., and Embarq Communications, Inc. Defendants Centur y Link Sales Solutions, Inc., and Embarq Communications, Inc., are therefore DISMISSED from this action. Plaintiffs # 27 Motion for enlargement of time to effect service is DENIED as moot. Signed by Magistrate Judge William G. Cobb on 7/12/2013. (Copies have been distributed pursuant to the NEF - DRM)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

CHARLES RANDOLPH,

)
)
Plaintiff,
)
vs.
)
)
THE STATE OF NEVADA, ex rel, NEVADA )
DEPARTMENT OF CORRECTIONS, et al.,
)
)
Defendants
)
________________________________________)

3:13-cv-00148-RCJ-WGC
MINUTES OF THE COURT
July 12, 2013

PRESENT: THE HONORABLE WILLIAM G. COBB, U.S. MAGISTRATE JUDGE
DEPUTY CLERK:

KATIE LYNN OGDEN REPORTER: NONE APPEARING

COUNSEL FOR PLAINTIFF(S): NONE APPEARING
COUNSEL FOR DEFENDANT(S): NONE APPEARING
MINUTE ORDER IN CHAMBERS:
Before the court is Plaintiff’s Motion for Extension of Time to Effect Service of Process.
(Doc. # 27.) Plaintiff seeks a 120 day extension to serve all Doe and misnamed defendants. Plaintiff
references Defendants’ Century Link Sales Solutions, Inc., and Embarq Communications, Inc.’s
Status Report (Doc. #15 at 3, ¶4) which informed the court of an issue concerning which entity
should apparently have been named as a Defendant. (Doc. # 27 at 2.)
Defendants Century Link and Embarq do not oppose Plaintiff’s motion (Doc. # 29), further
stating that Embarq Payphone Services, Inc., if added as a party, would be a proper party in this
action and that they “would not oppose a motion to substitute Embarq Payphone Services in place
of Century Link Sales Solutions, Inc., and Embarq Communications, Inc., rendering an extension
of time to effect service of process unnecessary.” (Id. at 2.) Plaintiff has replied to the Defendants’
response (Doc. #31.)
Also before the court is Plaintiff’s Unopposed Motion to Substitute Misnamed Party. (Doc.
# 32.) Plaintiff requests an order substituting Embarq Payphone Services, Inc., in place of Century
Link Sales Solutions, Inc., and Embarq Communications, Inc. Plaintiff references a footnote
contained in Defendants Century Link/Embarq’s motion to dismiss (Doc. # 5) wherein the
Defendants acknowledge Plaintiff has served the incorrect entity, and that “Should it become
necessary, the correct entity, Embarq Payphone Services, Inc., will seek to be substituted in place
of the misnamed corporations.” (Id. at 3, n.1.) No opposition to this motion has been filed.

MINUTES OF THE COURT
3:13-cv-00148-RCJ-WGC
Date: July 12, 2013
Page 2
Fed. R. Civ. P 15(a)(2) allows an amendment before trial upon leave of court – and that “the
court should freely give leave when justice so requires.” While Plaintiff's unopposed motion is not
technically a motion to amend his complaint, it might be interpreted as an effort by a pro se inmate
to correct a mistake. Such pleadings are to liberally construed. Eldridge v. Block, 832 F. 2d 1132,
1137 (9th Cir 1987); Erickson v. Pardus, 551 U.S. 89, 94 (2007). The courts have a duty to ensure
pro se litigants do not lose a right to a hearing on the merits due to their ignorance of technical
procedural requirements. Balistreri v. Pacifica Police Dep't, 901 F. 2d 696, 699 (9th Cir. 1990).
Good cause appearing, Plaintiff’s Unopposed Motion to Substitute Misnamed Party (Doc.
# 32) is GRANTED. Defendant Embarq Payphone Services, Inc., shall be substituted as a defendant
herein in place of Defendants Century Link Sales Solutions, Inc., and Embarq Communications, Inc.
Defendants Century Link Sales Solutions, Inc., and Embarq Communications, Inc., are therefore
DISMISSED from this action.
Plaintiff’s motion for enlargement of time to effect service (Doc. # 27) is DENIED as moot.
IT IS SO ORDERED.
LANCE S. WILSON, CLERK

By:

/s/
Deputy Clerk