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Shufelt v. Owens Precision, Inc.

United States District Court, D. Nevada

July 18, 2018

ALAN CURT SHUFELT, an individual, Plaintiff,
v.
OWENS PRECISION, INC., a Domestic Corporation; BRUCE HARMON, an individual; AMANDA HIGHTOWER, an individual, Defendant.

          THE GEDDES LAW FIRM, P.C. WILLIAM J. GEDDES ATTORNEYS FOR PLAINTIFF ALAN CURT SHUFELT

          ELIZABETH M. BITTNER, ESQ. BITTNER LEGAL LLC 316 ATTORNEYS FOR DEFENDANTS OWENS PRECISION, INC.

          RAELENE K. PALMER GALLIAN WELKER & BECKSTROM, L.C. ATTORNEYS FOR PLAINTIFF ALAN CURT SHUFELT

          PLAINTIFF'S MOTION TO ENLARGE TIME TO EFFECT SERVICE OF PROCESS ON DEFENDANT HIGHTOWER (SECOND REQUEST)

         COMES NOW Plaintiff ALAN CURT SHUFELT, by and through his counsel, William J. Geddes, Esq. of the law firm THE GEDDES LAW FIRM, P.C. and Raelene K. Palmer, Esq. of the law firm GALLIAN WELKER & BECKSTROM, L.C, and files Plaintiff's Motion to Enlarge Time to Effect Service of Process on Defendant Hightower (Second Request) ("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, the Declaration of William J. Geddes ("Declaration") attached hereto as Exhibit 1, and any oral arguments the Court may entertain at any hearing set for this matter. This is the second request for such an enlargement of time, as to Defendant Hightower.

         I. INTRODUCTION

         A. CASE OVERVIEW

         This is an employment-discrimination case arising under the Americans with Disabilities Act. For over seventeen years, Plaintiff Alan Curt Shufelt worked as a machinist at Owens Precision, Inc., a manufacturing-services company located in Carson City, Nevada. During his tenure, from December 19, 1999 through February 3, 2017, Plaintiff was promoted to the position of lead machinist. Plaintiff alleges herein that he suffered discrimination based on his disabilities, arising from workplace injuries to his left shoulder and rotator cuff. Defendants refused to accommodate his disabilities, harassed him, retaliated against him, failed to engage in the interactive process, and fired him. After Defendants fired Plaintiff, their unlawful retaliation continued, when they wrongfully disparaged Plaintiff to third parties, including prospective employers, stating that he was incompetent, that he was fired for non-performance, and that he was not eligible for rehire because he filed many worker's compensation claims. Plaintiffs supplemental, state-tort claims assert causes of action for: (1) tortious discharge in violation of public policy-relating to Defendants' termination of Plaintiff in retaliation for Plaintiff having sought worker's compensation benefits for his workplace injuries/disabilities; (2) invasion of privacy-relating to Defendants' wrongful disclosure of private facts concerning Plaintiffs historical filing of worker's-compensation claims, which implicates his private medical information and disabilities, the confidentiality of which is protected under the ADA and other law; and (3) defamation. Plaintiff seeks monetary, equitable, and injunctive relief.

         B. PROCEDURAL BACKGROUND

         On February 26, 2018, Shufelt filed his First Amended Complaint ("Complaint") in the above-captioned matter. (ECF 004.) While Shufelt attempted service on all three defendants, he was initially successful in serving only Defendant Owens Precision. (See ECF 007 (Declaration of Service on Defendant Owens Precision).) Thus, Shufelt filed a motion for enlargement of time, through and including July 22, 2018, to serve the remaining co-defendants, Bruce Harmon and Amanda Hightower. (ECF 010.) That motion for enlargement was granted. (ECF 014). Initially, it was expected that counsel for Defendant Owens Precision, Elizabeth Bittner, might also represent Defendants Harmon and Hightower, if no conflict-of-interest in such joint representation arose. (See ECF 10-1, ¶ 7 (Declaration of William Geddes in Support of Motion to Enlarge Time to Effect Service of Process on Defendants Harmon and Hightower).) In this regard, Shufelt had hoped that Ms. Bittner would simply accept service of process for co-Defendants Harmon and Hightower. However, Ms. Bittner subsequently communicated that she was unable to jointly represent co-Defendants Owens Precision, Harmon, and Hightower, due to a possible conflict of interest in such a joint representation. (See Exhibit 1, at ¶¶ 1-5.)

         Accordingly, Shufelt undertook to serve co-Defendants Harmon and Hightower at the last-known addresses supplied by Ms. Bittner. (Exhibit 1, ¶¶ 6-8.) Subsequently, on June 19, 2018, Shufelt timely served the summons and Amended Complaint on Defendant Harmon at his last-known address, within the extended time period allowed by the Court. (ECF 015 (Notice of Summons Returned Executed on Defendant Bruce Harmon with attached Declaration of Service for the same).) Shufelt also attempted, but failed, to effect service of process on Defendant Amanda Hightower at her last-known address, within the extended time period allowed by the Court. (ECF 016 (Notice of Summons Returned Unexecuted on Defendant Amanda Hightower with attached Declaration of Service Attempts for the same).) More specifically, such efforts attempted to effect service of process on Defendant Hightower seven times from June 19, 2018 to July 2, 2018, to no avail. (ECF 016-01.) Shufelt has now retained the services of a private investigator to attempt to track down Defendant Hightower's current address and to effect service of process on Defendant Hightower at that address. (Exhibit 1, at ¶ 9.) Based on the foregoing, Shufelt has diligently attempted to effect service on Defendant Hightower, but needs additional time to do so. (See Exhibit 1, at ¶ 10.) In this Motion, Shufelt respectfully requests an additional thirty (30) days to effect service of process of the Summons and Amended Complaint on Defendant Hightower, through and including Tuesday August 21.2018.

         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 to effect service of process beyond 90 days:

If a defendant is not served within 90 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. This subdivision (m) does not apply ...

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