Cerini v. Nevada Department Of Transportation et al

Filing 8

ORDER Plaintiff's ex parte motion for extension of time (ECF No. 7 ) is therefore denied. Pursuant to the Rule 4(m) Notice, claims against Defendants are dismissed without prejudice. The Clerk is directed to close this case. Signed by Judge Miranda M. Du on 4/4/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CHERI A. CERINI, an individual,

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Case No. 3:16-cv-00559-MMD-VPC
Plaintiff,

ORDER

v.
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STATE OF NEVADA, ex rel. its
DEPARTMENT OF TRANSPORTATION,
et al.,

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Defendants.
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Plaintiff initiated this action on September 26, 2016. (ECF No. 1.) On February 21,

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2017, the Court issued a notice of intent to dismiss under Rule 4(m) (“Notice”) because

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no proof of service has been filed. (ECF No. 5.) The Notice provides that the case may

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be dismissed unless proof of serve is filed by March 23, 2017. (Id.) On March 23, 2017,

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Plaintiff filed an ex parte motion for extension of time to issue the summons and serve

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process. (ECF No. 7.)

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Fed. R. Civ. P. 4(m) provides that the court “must dismiss the action without

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prejudice against defendant or order that service be made within a specified time” if

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service was not effectuated within 90 days of the filing of the complaint. “But if the plaintiff

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shows good cause for the failure, the court must extend the time for service for an

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appropriate time.” Fed. R. Civ. P. 4(m). In addition, LR IA 6-1(a) provides that a request

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for extension made after the deadline has expired will not be granted unless the party

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requesting the extension demonstrates the failure to file the motion before the deadline

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expired was the result of excusable neglect.

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Plaintiff’s counsel cites several reasons for his failure to effectuate process and

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argues that dismissal would prejudice his client because of potential expiration of the

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statute of limitations. Counsel contends he was unaware of the amendment to Rule 4(m)

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which became effective on December 1, 2015, modifying the time allowed for service from

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120 days to 90 days. (ECF No. 7 at 2.) Even accepting counsel’s lack of the knowledge

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of the amendment to Rule 4(m), counsel was still not diligent in prosecuting this case.

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Based on the Court’s calculation, the 120-day period would have expired on January 24,

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2017. Counsel apparently waited until January 24, 2017, to request waiver of service by

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Defendants’ counsel, who informed him of their decision to decline on the same day. (ECF

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No. 7-2.) Yet, Plaintiff’s counsel apparently took no action to effectuate service of process.

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He continued to fail to do so even after the Notice was issued on February 21, 2017, or

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by the March 23, 2017, deadline given in the Notice. (ECF No. 5.) Counsel explains that

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he has been experiencing significant stress because of his representation of a defendant

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in the Rand criminal case. (ECF No. 7-1 at 2.) The Court’s records reflect that Plaintiff’s

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counsel represents Defendant Clint Mitchell Bloodworth in United States v. Rand et. al.,

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No. 3:16-cr-00029-MMD-WGC (“Rand Case”). However, Mr. Bloodworth entered a guilty

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plea on February 23, 2017, and the sentencing is scheduled for June 5, 2017. (See Rand

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Case, ECF No. 475.) The plea in that case would have presumably freed up counsel’s

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schedule, yet counsel ignored the Notice and only filed the Motion, seeking an extension,

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on the deadline set in the Notice.

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Under the circumstances here, the Court finds that Plaintiff has not demonstrated

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good cause for the failure to effectuate service. Nor has Plaintiff demonstrated that his

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request for extension months after the deadline expired was the result of excusable

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neglect. Plaintiff had known on the day that counsel erroneously thought was the deadline

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to effectuate service — January 24, 2017 — that Defendants would not waive service,

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yet he waited until two months and on the deadline set in the Notice for filing proof of

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service to ask for an extension of time to effectuate service. Even accepting counsel’s

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explanation that he was overworked because of the Rand case, his client in that case
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entered a plea on February 23, 2017, yet Plaintiff’s counsel waited a month before filing

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the Motion.

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Plaintiff argues that dismissal without prejudice would result in prejudice because

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Plaintiff had to file this action by September 29, 2016, which is presumably 90 days from

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the U.S. EEOC’s issuance of the right to sue letter. (ECF No. 7 at 3.) While this may be

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the result, Plaintiff’s counsel’s conduct has caused significant delay, which would run

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contrary to the 90-day requirement for filing suit in the first place.

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Plaintiff’s ex parte motion for extension of time (ECF No. 7) is therefore denied.

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Pursuant to the Rule 4(m) Notice, claims against Defendants are dismissed without

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prejudice.

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The Clerk is directed to close this case.

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DATED THIS 4th day of April 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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