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Lo v. Golden Gaming, Inc.

United States District Court, D. Nevada

June 4, 2014

Yung Lo, Plaintiff,
v.
Golden Gaming, Inc., et al., Defendants.

ORDER DENYING AS MOOT DEFENDANT GOLDEN GAMING, INC.'S MOTION TO QUASH SERVICE OF PROCESS AND DISMISS THE COMPLAINT [DOCS. 20 & 22] AND PERMITTING PLAINTIFF LO AN ADDITIONAL 30 DAYS TO EFFECT PROPER SERVICE OF PROCESS PURSUANT TO THE COURT'S ORDER [DOC. 17]

JENNIFER A. DORSEY, District Judge.

Pro se plaintiff Yung Lo seeks to sue her former employer, Golden Gaming, which she claims discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq. Unfortunately Lo has not properly served Golden Gaming with a copy of the Summons and Complaint in compliance with Rule 4 of the Federal Rules of Civil Procedure or otherwise demonstrated good cause for the failure, in contravention of a prior court order. For the foregoing reasons, the Court grants Lo a one-time, 30-day extension of this deadline, and consequently denies as moot Golden Gaming's subsequently filed motions to quash service and dismiss Lo's complaint for failure to serve process.

Background

Lo originally sued Golden Gaming on November 5, 2012, seeking in forma pauperis status at that time. Doc. 1. Lo's request for in forma pauperis status was ultimately denied, Docs. 2, 4, and her complaint was filed on July 22, 2013. Doc. 7. On November 26, 2013, the Clerk of Court issued a Rule 4(m) notice of intent to dismiss Lo's Complaint, noting that no proof of service had been filed, and providing Lo until December 26, 2013, to either provide notice of service or otherwise demonstrate good cause why service could not be made. Doc. 17.

Three days before Lo's response was due, on December 23, 2013, Golden Gaming moved to quash service of process and to dismiss the Complaint under Rules 12(b)(2), 12(b)(4), and 12(b)(5). Docs. 20, 22. Lo responded to this motion on December 26, 2013, Doc. 24, claiming, inter alia, that she sent Golden Gaming "dismiss case copy together to Court today." Id. at 1.[1] To date, there is still no record evidence that Lo ever served Golden Gaming with a copy of the summons and complaint.

Discussion

A. The Court's November 26, 2013, Show Cause Order [Doc. 17]

1. Golden Gaming

Federal Rule of Civil Procedure 4(m) requires service of the summons and complaint to be completed within 120 days.[2] Rule 4(m) states that "[i]f a defendant is not served within 120 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."[3] Rule 4(c) further provides that "[t]he plaintiff is responsible for having the summons and complaint served within the time allowed under Rule 4(m)."[4]

Additionally, Rule 4(c) governs service of the summons and complaint and specifies that "Any person who is at least 18 years old and not a party may serve a summons and complaint."[5] Rule 4(h) governs service upon corporations, and provides several alternatives for service of process. A domestic corporation may be served:

[B]y delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant.[6]

Service on a domestic corporation may also be made "in the manner prescribed by Rule 4(e)(1) for serving an individual."[7] Rule 4(e)(1) permits Golden Gaming to be served by the methods identified by the law of the state where the district court is located or the state where service is made-in this case, Nevada.[8] In Nevada, service upon a Nevada corporation is proper only if both the summons and complaint are delivered to the corporation's registered agent or any corporate officer.[9] These are not trivial requirements: "service of process is the means by which a court asserts jurisdiction over the person, "[10] and when personal service is required, failure to perfect it is fatal to a lawsuit.[11]

Lo's explanation that he served Golden Gaming with a "dismiss case copy together to Court today" is incomprehensible, and in the months since Lo made this statement, Plaintiff has failed to provide the Court with any indication that service was made in compliance with Rule 4. Without this evidence, the Court concludes that Lo failed to properly serve Golden Gaming with a copy of the summons and complaint as required by the Court's November 26, 2013, order, or demonstrated good cause for why proper service was not made.

The Ninth Circuit has interpreted Rule 4(m) as requiring a two-step process for granting extensions of the service period.[12] If the Court finds good cause for the service delay, it must extend the time period. A court ascertains "good cause" on a case-by-case basis, the threshold requirement being excusable neglect.[13] Lo fails to demonstrate good cause ...


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