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Isbell v. Party City Corp.

United States District Court, D. Nevada

March 24, 2018

DEVON ISBELL, an individual, Plaintiff,
v.
PARTY CITY CORPORATION, a foreign corporation; MIKE ZAMECNIK, an individual; MIKE FRANCO, an individual; DOE BUSINESS ENTITIES 1-10; and DOE INDIVIDUALS 1-50. Defendants.

          THE GEDDES LAW FIRM, P.C. William J. Geddes Nevada Bar Number 6984 The Geddes Law Firm, P.C. Attorneys for Plaintiff Devon Isbell

          PLAINTIFF'S ORDER MOTION TO ENLARGE TIME TO EFFECT SERVICE OF PROCESS ON DEFENDANT MIKE FRANCO

          COMES NOW Plaintiff DEVON ISBELL, by and through her counsel, William J. Geddes, Esq. of THE GEDDES LAW FIRM, P.C, and hereby files Plaintiff's Motion to Enlarge Time to Effect Service of Process on Defendant Mike Franco ("Motion") in the above-captioned matter. This Motion is made pursuant to the following Points and Authorities, the pleadings and papers on file in this action, and any oral arguments the Court may entertain at any hearing set for this matter. This is the first request for such an enlargement of time.

         I. INTRODUCTION

         A. CASE OVERVIEW

         This is an employment-discrimination case arising under the Americans with Disabilities Act. Plaintiff Devon Isbell ("Isbell") was an employee of Defendant Party City Corporation ("Party City") from May 18, 2015 through January 5, 2016. Plaintiff worked at the Party City store located at 2825 Northtowne Lane in Reno, Nevada, serving as the store's general manager. Plaintiff alleges that she was discriminated against because of her physical disabilities that arose from workplace injuries to her knee. The workplace injury arose when a shelving unit fell over and struck her left knee, trapping her beneath the shelves. Such unlawful employment discrimination against Plaintiff included Defendants' refusals to accommodate her disabilities, their harassment and retaliation against her, their failure to engage in the interactive process, their disparate treatment in the benefits of her employment, their demotion or reduction in her pay, and their firing her. Isbell's supplemental, state-tort claims assert causes of action for tortious discharge in violation of public policy-relating to Defendants' firing Isbell in retaliation for her having sought worker's compensation benefits-and slander and intentional infliction of emotional distress-relating to their false accusation that Isbell committed insurance fraud and company theft. Plaintiff seeks monetary, equitable, and injunctive relief.

         B. PROCEDURAL BACKGROUND

         On December 7, 2017, Isbell filed her original and first amended complaint in the above-captioned matter. (ECF 001-002.) The 90-day, service-of-process deadline will run on March 7, 2018. See Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 4(m). Isbell attempted service on all three Defendants, as follows:

         1. On December 28, 2017, Isbell served the Summons and Amended Complaint on Party City, by serving its registered agent, Corporation Trust Company of America. (See ECF 009 (Summons Returned Executed, Declaration of Service filed herein));

         2. On January 17, 2018, Isbell attempted to serve the Summons and Amended Complaint on Defendant Mike Franco ("Franco"), at his ostensible place of employment, Party City, 2825 Northtown Lane, Reno, NV 89512. However, the current manager of the store, Mike Lemes, stated that he had been at the store for two years and had never heard of Franco. (See ECF 009 (Summons Returned Unexecuted, Declaration of Attempts for service on Franco));

         3. On January 17, 2018, Isbell attempted to serve the Summons and Amended Complaint on Defendant Mike Zamecnik ("Zamecnik"), at his ostensible place of employment, Party City, 2825 Northtown Lane, Reno, NV 89512. However, store manager, Mike Lemes, stated that he sees Zamecnik about once a month and had no idea when he will be in the store in January. (See ECF 009-1 (Summons Returned Unexecuted, Declaration of Attempts for service on Zamecnik)). The law firm of Fox Rothschild, LLP subsequently appeared in this action to jointly represent Party City and Zamecnik, but not Franco. (See Answer to Amended Complaint ("Answer"), ECF 007.)

         Of concern here is the fact that, in their Answer, Party City and Zamecnik denied that Franco was even employed by Party City. (ECF 007, ¶ 6.) Yet, Franco was a loss-prevention agent who was physically present at the Party City Store on behalf of Party City, as alleged in the Amended Complaint. (See e.g., ECF 002, ¶ 2 and 58.) Accordingly, Isbell will need additional time to discover the identity of Franco's employer and Franco's business relationship with Party City, so that his employer may be named as a defendant in this action, if appropriate, and so that service of process can be effected on Franco. This Motion seeks additional time to serve Franco, up to and including the last date for service of any amended pleadings in this case, according to the governing deadline to amend the pleadings, announced in the scheduling order that will issue this case.

         II. LEGAL ARGUMENT

         A. RULE 4(m) GOVERNS SERVICE OF PLEADINGS

         Fed. R. Civ. P. 4(m) governs the time limit for service of pleadings and allows parties to obtain extensions of time ...


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