Ramirez v. SMG et al

Filing 17

ORDER by Magistrate Judge Laura Fashing setting an Evidentiary Hearing re 15 Order to Show Cause for 3/1/2017 at 10:00 AM in Albuquerque - 340 Pecos Courtroom before Magistrate Judge Laura Fashing. (cda)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
VICTOR RAMIREZ,
Plaintiff,
v.

Case No. 1:16-cv-01023-MV-LF

SMG, LLC, JAMES HICE (Executive Chef),
CHRISTOPHER CARDENAS (Banquet Coordinator),
CARLOS MARTINEZ (Sous Chef),
GREG YOUNG, JORDAN RIVERA,
Defendants.
ORDER SETTING EVIDENTIARY HEARING
THIS MATTER comes before the Court on the Court’s Order to Show Cause (Doc. 15)
and plaintiff Victor Ramirez’s Response to the Order to Show Cause (Doc. 16). Having
reviewed the response, the Court will set an evidentiary hearing in the above matter on
Wednesday, March 01, 2017 at 10:00 a.m., at the United States Courthouse, 3rd Floor Pecos
Courtroom, 333 Lomas Blvd. NW, Albuquerque, New Mexico.
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 Rule 4, a court must excuse untimely service of process on a showing of good
cause. See FED. R. CIV. P. 4(m) (“[I]f the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.”); Espinoza v. United States, 52 F.3d
838, 841 (10th Cir. 1995) (holding that Rule 4(m)’s exception is mandatory upon a showing of
good cause). “[T]he good cause provision of [Rule 4(m)] should be read narrowly to protect
only those plaintiffs who have been meticulous in their efforts to comply with the Rule.”

Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1438 (10th Cir. 1994) (internal
quotation marks and citations omitted).1 A showing of good cause requires at least as much as
would be required to show excusable neglect.2 Putnam v. Morris, 833 F.2d 903, 905 (10th Cir.
1987). “If the plaintiff fails to show good cause, the district court must still consider whether a
permissive extension of time may be warranted. At that point the district court may in its
discretion either dismiss the case without prejudice or extend the time for service.” Espinoza, 52
F.3d at 841. “Relief may be justified, for example, if the applicable statute of limitations would
bar the refiled action, or if the defendant is evading service or conceals a defect in attempted
service.” FED. R. CIV. P. 4(m) advisory committee’s note to 1993 amendment.
Defendant removed this action on September 14, 2016. Doc. 1. At the time of removal,
plaintiff had not yet served defendants James Hice, Christopher Cardenas, Carlos Martinez, Greg

Young, or Jordan Rivera (“individual defendants”). In removed cases where plaintiff has not
1

Rule 4(j) became Rule 4(m) under the 1993 amendments to the Federal Rules of Civil
Procedure. FED. R. CIV. P. 4(m) advisory committee note (1993). The Tenth Circuit applies the
good-cause analysis that it applied in the Rule 4(j) context to Rule 4(m). See Espinoza, 52 F.3d
at 841.
2

According to Black’s Law Dictionary, “excusable neglect” is:
A failure—which the law will excuse—to take some proper step at the proper
time (esp. in neglecting to answer a lawsuit) not because of the party’s own
carelessness, inattention, or willful disregard of the court’s process, but because of
some unexpected or unavoidable hindrance or accident or because of reliance on
the care and vigilance of the party’s counsel or on a promise made by the adverse
party.

BLACK’S LAW DICTIONARY 871 (abridged 8th ed. 2005). Factors used in determining whether a
party’s neglect is excusable include “[1] the danger of prejudice to the [nonmoving party], [2] the
length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay,
including whether it was within the reasonable control of the movant, and [4] whether the
movant acted in good faith.” United States v. Torres, 372 F.3d 1159, 1162 (10th Cir. 2004)
(quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 402 (1993)).
“[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute
‘excusable neglect.’” Pioneer, 507 U.S. at 392.
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served defendants prior to removal, service is to be completed “in the same manner as in cases
originally filed in such district court.” 28 U.S.C.A. § 1448. Accordingly, Mr. Ramirez had 90 days,
or until December 13, 2016, to serve the individual defendants. Mr. Ramirez did not serve the

individual defendants within 90 days of the notice of removal. The Court issued an order to
show cause requiring Mr. Ramirez to show good cause why he had not served the individual
defendants within 90 days as required by Federal Rule of Civil Procedure 4(m). Doc. 15.
In response to the order to show cause, Mr. Ramirez attempts to justify his failure to
serve the individual defendants because they are aware of the pending action—as they are in
contact with counsel for SMG—but SMG is not willing to provide addresses to him. Id. at 2.
Actual notice is not equivalent to a showing of good cause. Despain, 13 F.3d at 1439. “The
relevant standard under Rule 4(j) is not whether defendants do or do not have ‘actual knowledge’
of a suit in which they are named. The standard is whether plaintiffs have shown ‘good cause’
for their failure.” Id.
Mr. Ramirez also requests that the Court direct defendant SMG’s counsel to provide
information with regard to the individual defendants to effect service. Id. The Court is not
inclined to entertain a request for relief without a motion made pursuant to Federal Rule of Civil
Procedure 7(b)(1) (requiring that a motion must be in writing unless made during a hearing or
trial) and Local Rule 7.1(a) (requiring that a motion be in writing and that the movant must
determine whether a motion is opposed).
Mr. Ramirez explains that he has limited funds and cannot afford a private investigator.
He has made “individual inquires” into the addresses of the individual defendants to no avail.
Doc. 16 at 1. Ramirez does not, however, provide sufficient evidence that he has been
meticulous in his efforts to comply with the rule.

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IT IS THEREFORE ORDERED that the Court will hold an evidentiary hearing in the
above matter on Wednesday, March 01, 2017 at 10:00 a.m., at the United States Courthouse,
3rd Floor Pecos Courtroom, 333 Lomas Blvd. NW, Albuquerque, New Mexico. Mr. Ramirez
should be prepared to present evidence to support a finding of good cause for his failure to serve
the individual defendants, or show that there is a justifiable reason for the Court to exercise its
discretion to lengthen the time for effectuating service.

______________________________________
Laura Fashing
United States Magistrate Judge

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