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Thomas v. Cox

United States District Court, D. Nevada

January 6, 2017

CASSANDRA ANN THOMAS, an individual; Plaintiffs,
v.
JAMES G. COX, et al.; Defendants.

          Travis N. Barrick, GALLIAN WELKER & BECKSTROM, LC Attorneys for Plaintiff Thomas

          PLAINTIFF'S MOTION TO EXTEND TIME FOR SERVICE ON DEFENDANTS COX, HOLMES AND KAYBATAY

         Pursuant to FRCP 4(m), plaintiff, Cassandra Thomas, through her attorneys of the law firm GALLIAN WELKER & BECKSTROM, LC, hereby submits her Motion to Extend Time for Service of the 1st Amended Complaint on Defendants Cox, Holmes and Kaybatay. This Motion is based upon the papers and pleadings on file herein, the Declaration of Travis N. Barrick below, and such oral argument that the Court chooses to entertain at the hearing thereon, if any.

         I. BACKGROUND FACTS.

         Ms. Thomas is currently incarcerated at the NDOC Florence McClure Women's Correctional Center ("FMWCC").

         On May 23, 2016, Ms. Thomas filed her pro se 1st Amended Complaint (ECF No. 11). Thereafter, she attempted service on certain defendants by way of U.S. Mail.

         On November 28, 2016, Mr. Barrick filed his Notice of Appearance (ECF No. 26).

         On December 5, 2016, the Court issued its Notice of Intent to Dismiss (ECF No. 28), giving Ms. Thomas until January 4, 2017 to accomplish service or the case would be dismissed.

         On December 5, 2016, Mr. Barrick prepared and filed proposed summons to be issued (ECF No. 29), which were subsequently issued by the Clerk (ECF No. 30). Thereafter, Mr. Barrick delivered the Summons to Legal Wings to be served on the various Defendants, at both the NDOC and the Attorney General's Office in Carson City.

         On December 20, 2016, Legal Wings accomplished service on Defendants Aranas, Clark, Cox, Faulkner, Gentry, Holmes and Kaybatay at the Attorney General's Office and Aranas, Clark, Faulkner and Gentry at the offices of the NDOC, which refused service of process on Cox, Holmes and Kaybatay.

         On January 5, 2017, Legal Wings delivered to Mr. Barrick the Affidavits of service on those Defendants, which were filed the same day (ECF No. 32).

         Legal Wings also delivered Affidavits of Attempted Service on Cox, Holmes and Kaybatay. The purpose of this Motion is to extend the time to accomplish service on Cox, Holmes and Kaybatay, the Defendants for whom NDOC refused to accept service.

         II. ARGUMENT.

         FRCP 4(m) provides that "if the plaintiff shows good cause for the failure [to accomplish service in a timely fashion], the Court must extend the time for service for an appropriate period."

         Here, Ms. Thomas has shown good cause because the NDOC refused to accept service for former NDOC employees Cox, Holmes and Kaybatay, as they are entitled to do.

         However, in the event that Mr. Barrick and counsel at the Attorney General's Office are unable to agree to waivers of service, then Ms. Thomas must take reasonable steps to locate those individuals to accomplish personal service.

         For this reason, Ms. Thomas requests an additional 60 days to accomplish service on Defendants Cox, Holmes and Kaybatay.

         DECLARATION OF TRAVIS N. BARRICK Thomas v. Cox, 2:i6-cv-8o-JAD-CWH

         STATE OF NEVADA

         ss.

         COUNTY OF CLARK

         I, Travis N. Barrick, having been first duly sworn on oath, states as follows under penalty of perjury:

         1. I am a resident of Clark County, Nevada, over the age of 18 years old and am counsel of record for the Plaintiff in this matter.

         2. On December 5, 2016, 1 prepared and filed proposed summons to be issued (ECF No. 29), which were subsequently issued by the Clerk (ECF No. 30).

         Thereafter, I delivered the Summons to Legal Wings to be served on the various Defendants, at both the NDOC and the Attorney General's Office in Carson City.

         3. On January 5, 2017, Legal Wings delivered to my office the Affidavits of service on some of the Defendants, which were filed the same day (ECF No. 32).

         4. On January 5, 2017, Legal Wings also delivered to my office Affidavits of Attempted Service on Defendants Cox, Holmes and Kaybatay at the NDOC. Those Affidavits[1] stated that the NDOC would not accept service on Cox and Holmes because they were no longer employed by the NDOC and because Dulce Kaybatay has never been employed by the NDOC.

         5. Further, Declarant sayeth not.

         ORDER

         For good cause appearing, it is hereby ordered that the time for Plaintiff to accomplish service on Defendants Cox, Holmes and Kaybatay is hereby extended until ___ March 4, 2017 ___.

         Exhibit 1

         Affidavits of Attempted Service

         AFFIDAVIT OF ATTEMPTED SERVICE RE; JAMES G. COX, DIRECTOR NDOC

         State of Nevada

         ss.

         County of Carson City

         Norma Holland Dunham, first being duly sworn deposes and says:

         1. That affiant is and was at all times mentioned herein a citizen of the United States, over 18 years of age, not a party to, nor interested in the within action, and licensed to serve civil process under Nevada license number 389.

         2. That affiant received the within Summons in a Civil Action; First Amended Complaint, Civil Rights Complaint Pursuant to 42 U.S.C. 1983, Jury Demand Trial on December

         3. That affiant attempted to personally serve a copy of said documents on the Defendant, James G. Cox, Director NDOC, at 5500 Snyder Ave., Bldg. 17, Carson City, Nevada 89701, on December 20, 2016 at 10:45 a.m. and spoke with Janet Schull, Human Resources Analyst, who stated that the Defendant is no longer employed there and they cannot accept service.

         4. That affiant on the basis of the foregoing information was unable to personally serve the Defendant, James G. Cox, Director NDOC, in Carson City, Nevada.

         Further your affiant saith naught.

         Norma Holland-Dunham Registered Work Card #R-061612

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Notes:

[1] True and correct copies of those Affidavits are attached as Exhibit 1.

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