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Antonetti v. Vegas

United States District Court, D. Nevada

January 16, 2015

Joseph Antonetti, Plaintiff,
v.
Las Vegas, et al., Defendants.

ORDER GRANTING MOTION TO RECONSIDER

RICHARD F. BOULWARE, II, District Judge.

I. Background

On January 14, 2013, Plaintiff Joseph Antonetti filed in this Court a Complaint, pursuant to 42 U.S.C. § 1983, and an Application to Proceed in forma pauperis. ECF No. 1. On August 30, 2013, Chief Judge Robert Jones screened the case and issued an order dismissing Counts I, II, III, and V with leave to amend, dismissing Counts VI and VII as duplicative without leave to amend, dismissing Count VIII with leave to amend in part only, and allowing Count IV to proceed as set forth. Order 15:16-18, ECF No. 5. All claims against Defendants Clark County Detention Center, Brian Sandoval, Nevada Board of Legislature, James Cox, Dwight Neven, Isidro Baca, Nevada Department of Corrections, E.K. McDaniels, District Attorneys, Steven Wolfson, Nevada Supreme Court, Michelle Leavitt, 8th Judicial District Court, Miss Nash, Mr. Fletcher, Dereed, C. Schardin, Dr. Jennings, L.C. Adams, John Donahue, S.L. Foster, and Patrick Burns were dismissed either because of immunity or a failure to set forth allegations against the named defendant. Id. at § I. The Court commented, "If plaintiff elects to proceed in this action by filing an amended complaint, he should specifically identify each Defendant to the best of his ability, clarify what constitutional right he believes each Defendant has violated and support each claim with factual allegations about each Defendant's actions." Id. at 15:18-33.

On January 24, 2013, Plaintiff filed an Amended Complaint as well as a Motion to Reconsider the dismissal of Court VI with prejudice. ECF Nos. 7, 9.

On April 28, 2014, the Court granted Plaintiff's application for leave to proceed in forma pauperis and dismissed Counts I, II, III, V, VI, and VII of the Amended Complaint for failure to state a claim. Order, 5:12-21, 6:10-11, ECF No. 10. Plaintiff was permitted to move forward with Count IV, "but only with respect to defendants Polley, Page, Goodwin, McKinnon, Sgt. Johnson, Zausa, #59247, and #4694." Id. at 5:13-14, 6:12-17. The Court denied the Motion to Reconsider. Id. at 15-17. The Court noted, "[w]hen plaintiff learns the names of the two defendants identified only by numbers, he will need to move for leave to amend the complaint to include those names and for service upon those defendants." Id. at 5 n.2. Plaintiff was ordered to furnish the U.S. Marshal with the completed USM-285 forms necessary for service of process upon the Defendants. Id. at 6:18-24. For any defendants not served, "[i]f plaintiff wishes to have service again attempted on an unserved defendant(s), then a motion must be filed with the court identifying the unserved defendant(s) and specifying a more detailed name and/or address for said defendant(s), or whether some other manner of service should be attempted." The Court also noted that Fed. R. Civ. Proc. 4(m) requires service within 120 days from the date that the order is entered. Id. at 6:27-28.

On May 2, 2014, Plaintiff filed an Objection, ECF No. 12, to the April 28 Order, and on May 13, Plaintiff filed a Motion to Proceed on Original Complaint, ECF No. 13. The Court denied both motions on May 27, 2014. ECF No. 14.

On September 10, 2014, because more than the 120 allowed had passed, the Court ordered that Plaintiff to provide proof of service or to show good cause for his failure to do so, and the Court indicated that failure to do so would result in dismissal. ECF No. 16. On September 15, Plaintiff responded to the Court's Order. ECF No. 17. Plaintiff explained that he did not "have full names, or addresses of any defendant" and had no assistance with filling out summons. Id. at 1.

On September 22, 2014, the Court dismissed Plaintiff's complaint without prejudice for failure to serve defendants within 120 days, pursuant to Fed.R.Civ.P. 4(m). On September 25, Plaintiff filed the instant Motion for Reconsideration, ECF No. 20, and filed an appeal, ECF No.

21. On September 29, the Ninth Circuit ordered the appeal dormant pending resolution of the Motion for Reconsideration. ECF No. 23.

II. Legal Standard

Under Federal Rule of Civil Procedure 60(b), a court may relieve a party from a final judgment only in the following circumstances:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for ...

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