United States District Court, D. Nevada
REPORT AND RECOMMENDATION MOTION TO REOPEN CASE [ECF
FERENBACH, UNITED STATES MAGISTRATE JUDGE
matter involves Plaintiff Douglas Cox's appeal from the
Administrative Law Judge's (“ALJ”) final
decision denying his social security benefits. Before the
Court is Plaintiff's motion to reopen his case. (ECF. No.
5). This case was closed on June 24, 2019 for lack of proof
of service. (ECF No. 4). For the reasons stated below, the
Court recommends denying Plaintiff's motion to reopen the
filed a complaint pro se against the Commissioner of
Social Security on December 21, 2018. (ECF. No. 1). Plaintiff
sought review of the ALJ's final decision denying his
application for disability insurance benefits under Title II
of the Social Security Act. (Id. at 2). The same
day, the Clerk sent Plaintiff an advisory letter to the
address listed on Plaintiff's complaint. (ECF Nos. 1 at
1; 2 at 1). The advisory letter stated that Plaintiff is
“responsible for service of process upon defendants and
all costs related to such service.” (ECF No. 2 at 2).
The letter also stated:
This is an advisory letter. Please do not rely solely on this
letter. All litigants are required to follow the Local Rules
of Practice for the District of Nevada.
A copy of the Local Rules can be found on the court's
website at www.nvd.uscourts.gov.
(ECF No. 2 at 3). The Clerk did not receive proof of service
on Defendant Beryhill. On May 23, 2019 the Clerk sent
Plaintiff notice that his case would be dismissed pursuant to
Federal Rule of Civil Procedure 4(m), “unless proof of
service is filed with the clerk by 6/21/2019.” (ECF No.
3). The Clerk mailed this notice to the address listed on
Plaintiff's complaint. (ECF Nos. 1 at 1; 3). Plaintiff
did not respond, and on June 24, 2019 the court dismissed the
case without prejudice. (ECF No. 4).
does not acknowledge receiving the clerk's advisory
letter. (ECF No. 5 at 1). Plaintiff states he did not serve
Defendants because “the lady at the desk who took my
paperwork [Complaint] stated that I will be notified when I
need to take the next step.” (Id.). Plaintiff
does acknowledge receiving the Clerk's notice of intent
to dismiss. (Id.). Plaintiff states he visited the
Clerk's office after receiving the notice of intent to
dismiss his complaint. (Id.). There, Plaintiff
claims a “gentleman at the desk, ” told him he
had until June 26, 2019 to file proof of service.
(Id.). Plaintiff thought he had been given an
extension. (Id.). On June 25, 2019, Plaintiff filed
a motion to renew the case. (Id.).
Court does not find good cause to reopen Plaintiff's
case. Under Federal Rule of Civil Procedure 4(m),
If a defendant is not served within 90 days after this
complaint is filed, the court - on motion or on its own after
notice to the plaintiff - must dismiss the action without
prejudice…[b]ut if the plaintiff shows good cause for
the failure, the court must extend the time for service for
an appropriate period.”
filed his complaint on December 21, 2018. (ECf No. 1). The
case was dismissed on June 24, 2019, 184 days after filing,
because Plaintiff failed to serve Defendant Beryhill. (ECF
No. 4). Plaintiff claims he did not serve Defendant because
he relied on statements made to him by employees of the
Clerk's office. (ECF No. 5 at 1).
court recognizes that it has a duty to ensure that pro
se litigants do not lose their right to a hearing on the
merits of their claim due to ignorance of technical
procedural requirements.” Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). In
recognition of this duty, the Clerk's office sent
Plaintiff an advisory letter on December 21, 2018 as
discussed above. (ECF No. 2). Although this Court recognizes
the challenges of pro se litigation, the fact that a
litigant pursues his case pro se cannot form the
sole basis of good cause. Hearst v. West, 31
Fed.Appx. 366, 369 (9th Cir. 2002) (“The mere fact that
[Plaintiff] was pro se does not constitute good
cause.”); see Wertheimer v. Grounds, 2015 U.S.
Dist. LEXIS 53628, at *8 (N.D. Cal. Apr. 22, 2015)
(discussing how Courts must make reasonable accommodations
for pro se litigants, but cannot refuse to apply the
law on a pro se litigants behalf).
claim that he relied on statements made by employees in the
Clerk's office does not form good cause either. Signs
prominently posted at the Clerk's intake window in the
courthouse read, “THE CODE OF CONDUCT FOR JUDICIAL
EMPLOYEES PROHIBITS ANY COURT EMPLOYEE FROM PROVIDING LEGAL
ADVICE.” See generally Code of Conduct for
Judicial Employees Cannon 2(D). Employees in the Clerk's
office do not render ...