Greene et al v. Cottonwood Mall et al
Filing
96
MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen B. Molzen granting 78 Motion to Dismiss Defendants Scott Wides and Russell Little, and denying 85 Motion for Extension of Time to Serve Defendants Scott Wides and Russell Little. Defendants Scott Wides and Russell Little are dismissed without prejudice. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANWAR GREENE AND LEE GIBSON
Plaintiffs,
v.
CIV 16-0222 KBM/SCY
SIMON PROPERTY GROUP, INC., AND
SCOTT WIDES, AND RUSSELL LITTLE,
INDIVIDUALLY AND AS EMPLOYEE(S)/
EMPLOYER(S)/ SUPERVISORS(S),
Defendants.
ORDER DISMISSING DEFENDANTS SCOTT WIDES AND RUSSELL
LITTLE WITHOUT PREJUDICE
THIS MATTER comes before the Court on two motions: (1) Defendant Simon
Property Group, Inc.’s (“SPG”) Motion to Dismiss Defendants Scott Wides and Russell
Little (Doc. 78), filed March 5, 2018; and (2) Plaintiffs’ Response to Defendant SPG’s
Motion to Dismiss Defendants Scott Wides and Russell Little, and Plaintiffs’ Motion for
Extension of Time to Serve Defendants Scott Wides and Russell Little, and Notice that
Briefing has not been Completed (Doc. 85), filed March 28, 2018. Pursuant to 28 U.S.C.
§ 636(c) and Fed. R. Civ. P. 73(b), the parties have consented to me serving as the
presiding judge and entering a final judgment. See Docs. 7, 14, 15, 16. Having reviewed
the parties’ submissions and all pertinent authority, the Court grants Defendant’s Motion
and denies Plaintiffs’ Motion.
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I. BACKGROUND
Plaintiffs filed their Complaint on January 5, 2016 in the Second Judicial District
Court of New Mexico, naming Cottonwood Mall, SPG, and John Does as Defendants.
Doc. 1-1 at 4. On March 24, 2016 Defendants SPG and Cottonwood Mall filed a Notice
of Removal to federal court. Doc. 1. Before any Defendant filed an answer or
responsive pleading,1 Plaintiffs filed their First Amended Complaint, terminating
Cottonwood Mall as a defendant. Doc. 13. Defendant SPG then filed an Answer and
Amended Answer. Docs. 18, 19. On June 3, 2016, Plaintiffs filed an opposed Motion for
Leave of Court to File Second Amended Complaint (Doc. 26), which the Court granted
in part on July 29, 2016, allowing Plaintiffs leave to substitute Scott Wides and Russell
Little as the John Doe defendants (Doc. 35). Plaintiffs filed their Second Amended
Complaint on September 30, 2016, naming Wides and Little as defendants, in addition
to SPG. Doc. 40. Defendant SPG filed its Answer to the Second Amended Complaint on
October 11, 2016. Doc. 41.
To date, Plaintiffs have not served Defendants Wides and Little, and Defendants
Wides and Scott have not filed any responsive pleading. Accordingly, Defendant SPG
filed its Motion to Dismiss Defendants Wides and Little on March 5, 2018. Doc. 78.
Plaintiffs requested and received an extension from the Court until March 27, 2018 to
file their response (Doc. 83), noting that they were expecting to receive supplemental
discovery responses from Defendant SPG needed for their response (Doc. 81). By
March 28, 2018, Plaintiffs had not filed a response, so Defendant SPG filed a Notice of
1
See Docs. 6, 10 (granting Defendants extensions of time to file an answer).
2
Completion of Briefing. Doc. 84. Later that day, Plaintiffs filed their response as part of a
Motion for Extension of Time to Serve and Notice that Briefing has not been Completed.
Doc. 85. Plaintiffs contend that the extension of time to respond to the Motion to
Dismiss was until “March 27, 2018 - one week after Plaintiffs expect to receive
supplemental discovery from Defendant SPG . . . .” Doc. 85 at 2. They argue that
because they did not receive the supplemental responses from Defendant SPG by
March 20, 2018 as anticipated, their response “is timely as it is being filed within one
week after Defendant SPG advised Plaintiffs that it would not provide the supplemental
discovery . . . .” Id.
Even assuming that Plaintiffs did not receive the supplemental discovery
responses as expected, the Order granting an extension of time to respond to the
Motion to Dismiss gave a deadline of March 27, 2018, not a deadline tethered to
Plaintiffs’ receipt of supplemental discovery. When they did not receive the
supplemental discovery on March 20, 2018, as they were expecting, Plaintiffs had every
opportunity to request a further extension. But they did not, and instead did not file a
timely response. “The failure of a party to file and serve a response in opposition to a
motion within the time prescribed for doing so constitutes consent to the grant the
motion.” D.N.M.LR-Civ 7.1(b). However, the Court will overlook that deficiency and
decide this issue on the merits. See, e.g., Wiatt v. State Farm Ins. Co., No. CIV 07-0526
JB/ KBM, 2008 WL 2229631, at * 2 (D.N.M. Mar. 24, 2008).
II. ANALYSIS
As an initial matter, Plaintiffs argue that “Defendant SPG has cited no authority in
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its motion to dismiss to establish standing to challenge service on behalf of another
defendant.” Doc. 85 at 3. Regardless, a court can sua sponte raise the issue of service.
See Fed. R. Civ. P. 4(m). As such, this Court will, again, proceed to the merits.
“In all cases removed from any State court to any district court of the United
States in which one or more of the defendants has not been served with process . . .
prior to removal, such process or service may be completed . . . in the same manner as
in cases originally filed in such district court.” 28 U.S.C. § 1448. Accordingly, Federal
Rule of Civil Procedure 4(m) provides in part:
If a defendant is not served within 90 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.
Under this standard, “the plaintiff is entitled to a mandatory extension of time if the
plaintiff can demonstrate good cause for failing to timely effect service.” Martinez-Jones
v. Dulce Indep. Schools, No. CIV 07-0703 JB/WDS, 2008 WL 2229457, at *3 (D.N.M.
Mar. 14, 2008) (citing Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995)).2
However, if a plaintiff does not show good cause for failure to serve, the court still has
discretion to extend the time to allow service or it can dismiss the case without
prejudice. Espinoza, 52 F.3d at 840-41.
Here, Plaintiffs have not served Defendants Wides and Little at all, let alone
within 90 days since they filed the Second Amended Complaint on September 30, 2016.
See Doc. 40. Further, Plaintiffs have not shown good cause for this failure to serve.
2
These cases discuss Rule 4(m)’s limit of 120 days for service, which has been amended to 90
days. Compare Fed. R. Civ. P. 4(m) (2015), with Fed. R. Civ. P. 4(m) (1993).
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Plaintiffs assert that they were “under the mistaken understanding that opposing
counsel had accepted service on behalf of the individually-named defendant employees
of Defendant SPG,” and “[o]pposing counsel never advised Plaintiffs that they did not
represent the individual defendants until recently . . . .” Doc. 85 at 3-4. But Plaintiffs
provide no explanation for this mistaken understanding and “[i]nadvertence or
negligence alone do not constitute ‘good cause’ for failure of timely serve.” Salazar v.
City of Albuquerque, 278 F.R.D 623, 627 (D.N.M. 2011) (citing In re Kirkland, 86 F.3d
172, 176 (10th Cir. 1996)). Additionally, almost every document filed on the docket by
counsel for Defendant SPG indicates in the introductory paragraph and the signature
line that counsel is only representing Defendant SPG. See Docs. 41, 43, 44, 51, 53, 54,
62, 72, 73, 76, 78, 84, 87, 88, 92, 95. But see Doc. 71. Plaintiffs further argue that
Defendants Wides and Little had actual notice and knowledge of this law suit (Doc. 85
at 3), but again fail to provide any information to support this claim. Plaintiffs therefore
have not shown good cause as to why an extension of time to serve is warranted.
Finally, the Court, in its discretion, will not grant an extension of time for service.
Although the statute of limitation may bar re-filing, Plaintiffs appear to lack interest in a
pursuing a claim against the individual defendants. Almost 18 months have passed
since Plaintiffs filed their Second Amended Complaint without serving the new
defendants. Plus, the case has progressed to the point where Plaintiffs and Defendant
SPG have engaged in and completed discovery. See Doc. 68 (setting the extended
discovery deadline for February 16, 2018).
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Wherefore,
IT IS HEREBY ORDERED that Defendant Simon Property Group, Inc.’s Motion
to Dismiss Defendants Scott Wides and Russell Little (Doc. 78) is granted, and
Plaintiffs’ Motion for Extension of Time to Serve Defendants Scott Wides and Russell
Little (Doc. 85) is denied.
IT IS FURTHER ORDERED that, Defendants Scott Wides and Russell Little are
dismissed without prejudice.
_______________________________________
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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