United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
an employment discrimination case arising under the Age
Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 623. Before the Court is Plaintiff Traci
House's “Motion for Relief from Order of Dismissal
Without Prejudice” (“Motion”) (ECF No. 24).
The Court has reviewed Defendant State Public Charter School
Authority's (“Authority”) response (ECF No.
25) as well as Plaintiff's reply (ECF No. 26). For the
following reasons, the Court denies Plaintiff's Motion.
moves for relief under Federal Rule of Civil Procedure 60(b).
(ECF No. 24 at 1.) Under Rule 60(b), a court may relieve a
party from a final judgment, order or proceeding only in the
following circumstances: (1) mistake, inadvertence, surprise,
or excusable neglect; (2) newly discovered evidence; (3)
fraud; (4) the judgment is void; (5) the judgment has been
satisfied; or (6) any other reason justifying relief from the
judgment. See Fed. R. Civ. P. 60(b); see also De
Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880
(9th Cir. 2000) (noting that a district court's denial of
Rule 60(b) motion is reviewed for abuse of discretion).
motion to reconsider must set forth “some valid reason
why the court should reconsider its prior decision” and
set “forth facts or law of a strongly convincing nature
to persuade the court to reverse its prior decision.”
Frasure v. United States, 256 F.Supp.2d 1180, 1183
(D. Nev. 2003). Reconsideration is appropriate if this Court
“(1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.” Sch. Dist. No. 1J v. ACandS,
Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion
for reconsideration is not an avenue to re-litigate the same
issues and arguments upon which the court already has
ruled.” Brown v. Kinross Gold, U.S.A., 378
F.Supp.2d 1280, 1288 (D. Nev. 2005).
Authority is a state-created governmental organization and
must be served by delivering a copy of the summons and
complaint to its chief executive officer or in the manner
prescribed by Nevada law. See Fed. R. Civ. P.
4(j)(2). Under Nevada law, a copy of the summons and
complaint must be served upon the Attorney General (or his or
her designate) as well as “the person serving in the
office of administrative head of the named agency.” NRS
filed the Complaint on December 19, 2017, but did not serve
the Authority's administrative head, who was Patrick
Gavin at the time. (ECF No. 1; ECF No. 23 at 1-2.) The
Authority moved to dismiss for lack of service (ECF No. 11),
and the Court granted the Authority's motion (ECF No. 23
at 2). In her opposition to the Authority's motion,
Plaintiff alleged that she attempted to serve Mr. Gavin on
six occasions in February 2018. (ECF No. 14 at 2.) Plaintiff
also requested an extension of time to August 15, 2018, to
serve Mr. Gavin. (Id. at 3.) But even by November
28, 2018, Plaintiff had not filed proof of service as to Mr.
Gavin. (ECF No. 23 at 2.) Accordingly, the Court granted the
Authority's motion and dismissed Plaintiff's case
without prejudice. (Id.) Plaintiff filed her Motion
two and a half months later. (ECF No. 24 (filed February 12,
Motion, Plaintiff seeks an order setting aside the dismissal
order and allowing Plaintiff ten days to obtain a summons and
serve the Authority's acting executive director.
(Id. at 6.) Plaintiff essentially contends that she
was unable to serve Mr. Gavin because he was affirmatively
evading service. (Id. at 2-3.) But this is exactly
what Plaintiff alleged in her response to the Authority's
motion to dismiss. (ECF No. 14 at 2 (“Mr. Gavin and his
staff intentionally try to avoid service being
executed.”).) Thus, Plaintiffs Motion constitutes an
attempt “to re-litigate the same issues and arguments
upon which the court already has ruled.”
Brown, 378 F.Supp.2d at 1288.
reply, Plaintiff additionally argues that her failure to
serve Mr. Gavin was the result of “excusable
neglect.” (ECF No. 26 at 3.) While neglect is apparent
in this case, Plaintiff has not shown it to be excusable.
Plaintiff did not even file her Motion until two and a half
months after dismissal of her case, and Plaintiff offers no
explanation for her delay. Plaintiff also argues that Nev. R.
Civ. P. 4.2(d)(6)(A) requires the court to “allow a
party a reasonable time to cure its failure” to serve
the administrative head if the party has served the Attorney
General. (ECF No. 26 at 3.) But Plaintiff has had more than a
year to serve the Authority's administrative head and has
failed to do so.
the Court will deny Plaintiff's Motion.
Court notes that the parties made several arguments and cited
to several cases not discussed above. The Court has reviewed
these arguments and cases and determines that they do not