United States District Court, D. Nevada
before the court is defendant Quality Medical Imaging of
Nevada LLC.'s (“Quality”) motion to dismiss.
(ECF No. 23). Plaintiff Omari Naeem Bey
(“plaintiff”) filed a response (ECF No. 26), to
which Quality replied (ECF No. 29).
before the court is State of Nevada ex rel. Nevada Department
of Corrections, Director Greg Cox, Warden Dwight Neven,
Correctional Officer Franco's (“state
defendants”) motion to dismiss. (ECF No. 25). Plaintiff
filed a response (ECF No. 30), to which state defendants
replied (ECF No. 31).
relevant here, on February 5, 2019, plaintiff brought this
action, alleging (1) a violation of his Eighth Amendment
rights, (2) Monell liability, (3) sexual molestation
as the tort of assault, (4) sexual molestation as the tort of
battery, (5) sexual molestation as the tort of intentional
infliction of emotional distress, (6) battery, during his
incarceration at High Desert State Prison.
multiple attempts, plaintiff served Quality on May 7, 2019.
Plaintiffs attempted to serve state defendants through
certified mail, which receipt was acknowledged on April 16,
2019. Plaintiff has not otherwise attempted service on state
defendants. Now, both Quality and state defendants move to
dismiss plaintiff's complaint for failure to comply with
Federal Rule of Civil Procedure 4(m).
4(m) provides the deadline for service as follows:
“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.”
Rule of Civil Procedure 12(b)(5) allows a party to file a
motion to dismiss based on a violation of 4(m). Courts have
broad “discretion to extend time for service under Rule
4(m), ” Efaw v. Williams, 473 F.3d 1038, 1041
(9th Cir. 2007), and may extend time for service even after
the Rule 4(m) deadline has expired, Mann v. Am.
Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003). In
addition, the Federal Rules of Civil Procedure “should
be construed, administered, and employed by the court and the
parties to secure the just, speedy, and inexpensive
determination of every action and proceeding.”
before the court is Quality's and state defendant's
motion to dismiss the plaintiff's complaint for failure
to comply with Rule 4(m). Quality asserts that the complaint
must be dismissed because the plaintiff missed his service
deadline without good cause. State defendants assert the
complaint should be dismissed because plaintiff missed the
service deadline by serving the government through mail in
violation of federal and Nevada rules. The court will address
each motion in turn.
Quality's motion to dismiss
parties agree that the Rule 4(m) deadline for plaintiff to
properly serve Quality was May 6, 2019. Both parties also
agree that plaintiff missed this deadline by serving Quality
on May 7, 2019. Thus, the only question before the court is
whether plaintiff missing this deadline is excusable under
Ninth Circuit has explained that Rule 4(m) “provides
two avenues for relief” for parties who miss their
service deadline. Lemoge v. United States, 587 F.3d
1188, 1198 (9th Cir. 2009). The first avenue is mandatory:
upon a showing of good cause, a district court must extend
the time for service. Id. The second avenue is
discretionary: if the plaintiff fails to establish good
cause, a district court ...