United States District Court, D. Nevada
ORDER MOTION TO ENLARGE TIME [ECF NO. 30]
FERENBACH UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff Elizabeth Carley's Motion for
Enlargement of Time in Which to File: Proof of Service for
Defendant Hill. (ECF No. 30). For the reasons discussed
below, Plaintiff's motion is granted.
complaint against Defendants Jo Gentry, Tanya Hill, Patrick
Vejar, and Sherryl Foster was filed on September 5, 2019.
(ECF No. 4). On the same day this Court ordered a 90 day stay
on the case pending an Early Inmate Mediation Conference,
during which time “no other pleadings or papers will be
filed, ” and “the parties will not engage in any
discovery.” (ECF No. 3 at 7). The Parties did not
settle. (ECF No. 8). The Court lifted the 90 stay and Ordered
that service be perfected by March 3, 2019. (ECF No. 9 at 2).
December 21, 2018, the Office of the Attorney General
accepted service for Defendant Sheryll Foster (ECF No. 10)
and submitted the last known addresses of Defendants Gentry,
Vejar, and Hill under seal. (ECF Nos. 11, 12). On February
25, 2019, the U.S. Marshall served Defendant Vejar. (ECF No.
22). On February 27, 2019, the U.S. Marshall served Defendant
Gentry. (ECF No. 24). Defendants Vejar and Gentry were
personally served at their respective residencies pursuant to
Federal Rule of Civil Procedure 4(e)(2)(A).
February 25, 2019, the U.S. Marshall returned the summons for
Defendant Tanya Hill unexecuted because Tanya Hill no longer
resided at the address provided. (ECF No. 21). Plaintiff took
steps to locate Defendant Tanya Hill and discovered that the
Office of the Attorney General had accepted service on behalf
of Tanya Hill in a prior case. (ECF No. 30 at 2). On March
27, 2019, Plaintiff Carley moved to enlarge time for service
of her complaint on Defendant Tanya Hill by an additional 90
days. (ECF 30 at 2). Defendants did not oppose the motion.
Court finds there is good cause to extend time for service of
the complaint. “[T]he Court must extend the time for
service for an appropriate period, ” when “the
Plaintiff shows good cause for the failure, ” to timely
serve a Defendant. Fed. R. Civ. Pro. 4(m). Here, Plaintiff
Carley relied on the address provided to her by the Office of
the Attorney General per Court Order. (ECF Nos. 11, 12). When
the summons was returned unexecuted, Plaintiff took
reasonable steps to locate Defendant Tanya Hill and
discovered that the Office of the Attorney General had
accepted service on behalf of Tanya Hill in a prior case.
(ECF No. 30 at 2). Plaintiff then filed the Motion to Extend
Time for an additional 90 days along with a Motion to Compel
Discovery on the Office of the Attorney General for the
current address of Defendant Tanya Hill. (ECF Nos. 30, 31).
The Court finds Plaintiff had good cause for failing to serve
Defendant Hill by March 3, 2019 and finds the requested 90
day extension is an appropriate period.
addition, Defendants have consented to the extension of time
by failing to oppose it. Under Local Rule 7-2(d), “the
failure of an opposing party to file points and authorities
in response to any motion, except a motion under Fed.R.Civ.P.
56 or a motion for attorney's fees, constitutes a consent
to the granting of the motion.” No. Defendant has filed
an opposition to Plaintiff's motion to extend time. The
Court finds this lack of response constitutes consent under
the Local Rule.
and for good cause shown, IT IS ORDERED that Plaintiffs
Motion for Enlargement of Time in Which to File: Proof of
Service for Defendant Hill (ECF No. 30) is GRANTED. Plaintiff
must serve Defendant Tanya Hill on or before September 15,
to Local Rules IB 3-1 and IB 3-2, a party may object to
orders and reports and recommendations issued by the
magistrate judge. Objections must be in writing and filed
with the Clerk of the Court within fourteen days. LR IB 3-1,
3-2. The Supreme Court has held that the courts of appeal may
determine that an appeal has been waived due to the failure
to file objections within the specified time. Thomas v.
Arn, 474 U.S. 140, 142 (1985). This circuit has also
held that (1) failure to file objections within the specified
time and (2) failure to properly address and brief the
objectionable issues waives the right to appeal the District
Court's order and/or appeal factual issues from the order
of the District Court. Martinez v. Ylst, 951 F.2d
1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United
Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).
to LR IA 3-1, the Plaintiff must immediately file written
notification with the court of any change of address. The
notification must include proof of service upon each opposing
party of the party's attorney. ...