Spears v Brown et al

Filing 13

ORDER denying Defendants' 8 Motion to Dismiss. Pursuant to Rule 4(m), Spears is ORDERED to perfect service on Defendants within 30 days of the issuance of this order. If Spears fails to serve Defendants within 30 days of the issuance of this order, Defendants may renew their motion to dismiss. Signed by U.S. District Judge John C Coughenour. (TH) (cc: Plaintiff via U.S. Mail)

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 TRISTON SPEARS, 10 Plaintiff, CASE NO. C17-0787-JCC ORDER v. 11 ROGER BROWN, et al., 12 13 Defendants. 14 15 This matter comes before the Court on Defendants’ motion to dismiss (Dkt. No. 8). 16 Having thoroughly considered the briefing and the relevant record, the Court finds oral argument 17 unnecessary and hereby DENIES the motion for the reasons explained herein. 18 I. 19 BACKGROUND Plaintiff Triston Spears (“Spears”) brought suit against several employees of the King 20 County Department of Adult Detention (“Defendants”) for allegedly assaulting him during a pat- 21 down search while Spears was detained in the King County Work Release Program. (See Dkt. 22 No. 1 at 1–2.) Spears brought claims under 42 U.S.C. § 1983 and 42 U.S.C. § 15061 (Prison 23 Rape Elimination Act (“PREA”)). The assault allegedly occurred in May 2014, but Spears did 24 not file his complaint until May 19, 2017. (Id.) 25 Three weeks after filing the complaint, Spears’ attorney moved to withdraw as counsel. 26 (Dkt. No. 5.) The Court granted the motion to withdraw, and Spears is currently unrepresented. ORDER PAGE - 1 1 (Dkt. No. 7.) On August 30, 2017, Defendants moved to dismiss, claiming they were never 2 served Plaintiff’s complaint. (Dkt. No. 8 at 1.) Plaintiff did not file a response to Defendant’s 3 motion to dismiss, and Defendants filed a reply. (Dkt. No. 12). 4 II. DISCUSSION 5 Defendants must generally be served within 90 days of the complaint being filed. Fed. R. 6 Civ. P. 4(m). If a defendant is not served within 90 days, the Court must either dismiss the action 7 without prejudice or order that service be completed within a specified time. Id. District courts 8 have broad discretion to extend time for service under Rule 4(m). Efaw v. Williams, 473 F.3d 9 1038, 1041 (9th Cir. 2007). When deciding whether to extend the time for service under Rule 10 4(m), a district court may consider factors “like a statute of limitations bar, prejudice to the 11 defendant, actual notice of a lawsuit, and eventual service.” Id. (quoting Troxell v. Fedders of N. 12 Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998)). 13 Plaintiff’s complaint was filed on May 19, 2017. (Dkt. No. 1.) Plaintiff needed to serve 14 Defendants with his complaint by August 17, 2017 to meet Rule 4(m)’s 90-day deadline. Having 15 not filed a response, Spears has not provided evidence that he has served or attempted to serve 16 Defendants. Although the Court could grant Defendants’ motion under Rule 4(m), it is instead 17 choosing to give Spears an additional 30 days to serve Defendants. 18 The Court is sympathetic to Spears’ current position. First, his attorney withdrew within 19 weeks of filing his complaint. (Dkt. No. 5.) That turn-of-events, when coupled with the fact that 20 Spears has not yet retained new counsel, made it harder for Spears to comply with the Rule 4 21 service requirements. His current lack of an attorney is also likely the reason why Spears did not 22 file a response brief to Defendants’ motion to dismiss. In their reply, Defendants ask the Court to 23 consider Spears’ lack of a response as another reason to dismiss his lawsuit. (Dkt. No. 12 at 1–2.) 24 The Court has discretion under Federal Rule of Civil Procedure 56(e) regarding how to treat a 25 party’s lack of responsive briefing. Fed. R. Civ. P. 56(e) (Where a party fails to properly address 26 another party’s assertion the court may “(4) issue any other appropriate order.”). Given the ORDER PAGE - 2 1 procedural history of this case, the Court chooses not to treat Spears’ failure to file a response as 2 a basis for dismissing his lawsuit. Second, if the Court chooses to dismiss the complaint for this 3 procedural deficiency, Spears will almost certainly lose his ability to bring his claims in the 4 future based on the applicable statute of limitations. 1 5 This statute of limitations issue would effectively nullify Rule 4(m)’s option of a 6 dismissal without prejudice to allow a plaintiff to refile. Fed. R. Civ. P. 4(m). Such a result 7 would be quite harsh for a plaintiff who suddenly finds himself without a lawyer and alone to 8 navigate the Federal Rules of Civil Procedure. The Court will exercise its discretion to avoid this 9 result. Finally, the Court perceives no prejudice to Defendants by allowing Spears additional 10 time to perfect service, as they are on notice of the lawsuit and the extension of time is minimal. 11 III. 12 CONCLUSION For the foregoing reasons, Defendants’ motion to dismiss is DENIED. Pursuant to Rule 13 4(m), Spears is ORDERED to perfect service on Defendants within 30 days of the issuance of 14 this order. If Spears fails to serve Defendants within 30 days of the issuance of this order, 15 Defendants may renew their motion to dismiss. The Clerk is further DIRECTED to send a copy 16 of this order to Plaintiff. 17 DATED this 21st day of September, 2017. A 18 19 20 John C. Coughenour UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 1 In his motion to withdraw, Spears’ former attorney pointed out that Spears’ claims were filed on the very last day available to him under the statute of limitations. (Dkt. No. 5 at 1.) Defendants state the same in their motion to dismiss. (Dkt. No. 8 at 2.) ORDER PAGE - 3

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